The 2012 case of Chisholm v. Lindsay 2012 ABQB 81 is a typical example of Alberta courts routinely under compensating victims of motor vehicle collisions. In Chisholm v. Lindsay the plaintiff was injured when she was rear-ended by the defendant’s vehicle. At the time of the accident the plaintiff was working full time as a special education teacher. In the accident she suffered TMJ pain, chronic pain and fatigue, mild traumatic brain injury and right knee problems.
When the plaintiff victim returned to work she was very tired at work and could not do any of the physical aspects of her job for the rest of the term. She then had some maternity leave and returned part time and then took a second maternity leave and then brought action for damages. The plaintiff was awarded $125,000 for loss of earning capacity, but not a defined future income stream loss as the court held it was not established that the victim would be unable to work full time in the future. Rather the court said this was an appropriate case to award a loss of earning capacity as a result of the victim clearly being rendered less capable of earning income as a result of her injuries suffered. However she would continue to suffer some fatigue and pain from time to time in the future and the court found that this would impact her future loss of income going forward.
The court did not award a defined or mathematical calculation of a future loss of income based upon not working so many hours per week for so many years into the future. It is unfortunate the court did not proceed with a defined future loss of income stream as a calculation would undoubtedly have far exceeded $125,000, as even a small loss per week over a long-term future for a middle-aged woman is a large loss.
Under Compensate Victims of Motor Vehicle Collisions
Unfortunately, the Alberta Court of Queen’s Bench continues to shy away from awarding full compensation to victims of motor-vehicle claims and accepts the argument of defendant auto insurance companies’ lawyers that a lump-sum future loss of income will adequately compensate the victim.
This ignores the Supreme Court of Canada trilogy cases from 1978 in Andrews vs. Grand & Toy where damages for pain and suffering were capped, but in the process the Supreme Court of Canada said it is only doing this on the assumption that the victim would receive full compensation for other heads of damages. Given the cap on general damages, any doubt about a future income loss (and there will always be questions about the future), should be resolved in favour of the innocent victim, not the defendant wrongdoer’s insurance company!
The Alberta Court of Queen’s Bench giving the benefit of the uncertainty of future losses to the wrongdoer, while at the same time being forced to apply the cap on general damages for pain and suffering as per the Supreme Court of Canada direction from 1978, results in routine under compensation of victims of accidents in Alberta to the benefit of multinational, for-profit auto insurance companies in Alberta.