In Symons v. ICBC, the Plaintiff was seriously injured in a motor vehicle accident, and consequently commenced legal proceedings, seeking damages for pain and suffering, income loss, loss of housekeeping capacity, diminished earning capacity, cost of future care, and out of pocket expenses.
The Defendant driver did not defend the action, however ICBC did, originally denying liability and alleging contributory negligence against the Plaintiff. However, liability was conceded at trial by ICBC, who did not pursue its’ claim of contributory negligence, nor did it argue that the Plaintiff had failed to mitigate her damages.
The Plaintiff suffered a variety of injuries, most notably to her lower back, which required three surgeries. She also underwent psychiatric treatment for post-traumatic stress disorder and a major depressive disorder.
Determining an appropriate award for diminished earning capacity is not always an easy task, particularly in the case at bar, where the Court noted that neither side had provided the Court with actuarial evidence.
The Court found that the Plaintiff’s expert evidence clearly established that there would be a real and substantial possibility that the Plaintiff’s injuries and continuing disabilities would cause her to lose income in the future. The Court also noted that, at the time of the accident, the Plaintiff had been very well motivated to perform well with her business as a self-employed first aid attendant in the oil and gas industry.
Rather than using the earnings approach in an attempt to quantify diminished earning capacity, the Court adopted the other accepted approach, that being the capital asset approach, as quantification of diminished earning capacity was not easily measurable . This approach recognizes that there has been an impairment to the Plaintiff’s ability to earn income. Factors that a Court will consider when adopting such an approach include whether the Plaintiff has been rendered less capable overall from earning income from all types of employment; whether the Plaintiff is less marketable or attractive as an employee to potential employers; whether the Plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him or her, had he or she not been injured; and,whether the Plaintiff is less valuable to himself or herself as a person capable of earning income in a competitive labour market.
Counsel for the Plaintiff argued that the Plaintiff would most likely have worked in her chosen field to retirement had she not been involved in the accident, which the Court found to be a real possibility. The Court was critical of the position taken by ICBC’S lawyer that the Plaintiff could work part-time in her chosen profession, and supplement her income from a proposed horse breeding business, stating that “this is just so speculative as to be nonsense”.
In awarding the Plaintiff $1,400,000.00 in diminished earning capacity, the Court commented that :
 The third party argued that the plaintiff could work part-time at $20 to $25 per hour, making about $25,000 per year. Then, income from the plaintiff’s proposed horse breeding business would bring her up to pre-accident earnings within a year or two. This is just so speculative as to be nonsense. There was no evidence as to what a horse breeder could make and no substantive evidence that the plaintiff was so qualified except for her own love of horses. The prospect of the plaintiff working regular part-time immediately at the rate suggested by the third party is slim. The third party also argued without evidence that job opportunities for first aid attendants had dropped along with pay rates such that the plaintiff would probably not be earning more than $25,000 as a first aid attendant in any event. There was then the suggestion, not put to the plaintiff, that she would likely then have “decided to cut her losses and move onto something else”. In the alternative, the third party suggested annualized losses in the $20,000 to $30,000 range to age 65 which, given discount factors, would result in loss of earning capacity in the range of $300,000 to $450,000. No formula was given for this calculation.
 The plaintiff argued that the plaintiff would most likely have worked as a first aid attendant to retirement if the accident had not occurred. This is certainly a real possibility with the additional likelihood that the plaintiff would have advanced her skills and her reputation in the business. The plaintiff suggested that the plaintiff would have earned between $50,700 to $80,700 per year. This is less than the $87,900 per year projected by the third party for past wage loss. Against this is the real possibility that the plaintiff will return to part-time employment. The potential job as a riding instructor would earn the plaintiff only $3,360 per year. The plaintiff agreed that a more regular part-time job could earn the plaintiff as much as $26,000 per year. This left the range of possible annual income loss between $25,000 and $80,700. The plaintiff would then apply the discount table from Appendix E of the Civil Jury Instructions as was done in Erickson v. Bowie, 2007 BCSC 1465 (CanLII) at para. 5, a case provided by the third party, to come to a range from $593,500 to $1,940,700 for future income loss to retirement at age 65. This discount rate is set by the Chief Justice pursuant to s. 56 Law and Equity Act, R.S.B.C. 1996, c. 253 and BC Reg 74/2014. Ultimately, the plaintiff sought an award in the range of $1,500,000 to $2,000,000.
 After consideration of all of the factors here and without mathematical precision, I have concluded that the plaintiff would likely have made about $80,000 per year in her first aid business and would have worked in this business as long as she could to retirement at age 65. She is driven to work now but faces significant obstacles that restrict the likelihood of her maintaining regular part-time employment at a rate of about $25,000 per year into the future. Assessing this loss as best as possible considering both positive and negative contingencies, and taking into account the discount factor without expert assistance, an award of $1,400,000 for loss of future earning capacity is appropriate here.