In determining future loss of income arising from auto accident injuries, courts are entitled to base their awards on the ‘common-sense’ knowledge that chronic pain will take its toll on the victims as they age, causing them to retire early, B.C.’s Court of Appeal has confirmed.
“The judge was entitled, based on the [injured driver’s] evidence and on common knowledge, to reach the conclusion that as [an injured driver] ages, diminished stamina could reasonably lead to early retirement,” B.C.’s Appeal Court wrote in a decision released Thursday.
In Dong v. Li, Kar-Wing Chester Li, a laboratory technologist earning $80,000 a year at Vancouver General Hospital, was injured in an auto accident on Apr. 23, 2018. He was 40 years old when the accident happened.
Li did not need immediate medical attention after the accident, but he did suffer injuries to his back, neck and knee. One week after the accident, he continued to have knee and back pain, low-level pain in his neck, and, from time to time, headaches.
Medical experts in court disagreed on the prognosis. One said his condition was not likely to change much during his life. The court, however, preferred another medical expert’s advice that Li’s health might improve through a physiotherapy rehab program.
Li, 45 at the time of the lower-court trial, told the B.C. Supreme Court the pain he experienced at work may cause him to retire earlier than his originally planned age of 65. The trial judge awarded him $120,000 in future lost income, based on the presumption that his chronic pain would force him to retire early.
The defendants appealed the decision, saying the award was not consistent with the trial judge’s finding that Li’s pain might improve with therapy over time. Presuming Li’s pain would become more difficult to manage with age was purely speculative, they argued before the Appeal Court.
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But the Appeal Court disagreed, for two main reasons.
First, although Li’s health might show improvement over time, that didn’t mean his chronic pain would completely disappear, the court found.
“It is important to keep in mind that the question is not whether Mr. Li’s accident symptoms can be resolved — Dr. Waseem quite rightly notes that their duration and progress suggest they cannot — but whether some of his pain can be reduced, and his function can thereby be increased,” the B.C. Appeal Court ruled.
“It is true that Mr. Li has not gotten worse using his current approach, but the real question is whether his situation can get better to any meaningful degree.”
And second, assuming Li’s chronic pain was unlikely to be completely resolved, the court said it was valid for the trial judge to assume the pain would become more difficult to endure with age.
“Mr. Li works with significant pain and discomfort,” the Appeal Court observed. “While his injuries are not expected to get worse (and may improve a bit), they are permanent and will continue to cause pain and discomfort that is exacerbated by his work.
“The judge made no error in finding that chronic pain would take a toll over the years, nor was he wrong to accept the common-sense proposition that a person’s stamina is likely to decrease as they get older.”
Feature image courtesy of iStock.com/SrdjanPav
