Its Tricky Figuring Out Future Income Loss From Accident

Posted in: ICBC / INJURY- Apr 18, 2018 Comments Off on Its Tricky Figuring Out Future Income Loss From Accident

A car accident can cause different kinds of losses; one loss may be your reduced future earnings capacity. The court must try to assess this to fairly compensate you. A recent B.C. Supreme Court case had to grapple with such an assessment.

Keith, 19 and in excellent physical condition, was riding his bicycle through an intersection when he was hit by Carla’s left-turning car (names changed). Carla was fully at fault for the accident.

The trial took place three-and-a-half years after the accident. By then, Keith had fully recovered from many of his injuries. But some injuries and his shoulder, hip and neck pain when he performed certain tasks were chronic and unlikely to ever improve much. They would prevent him altogether from doing certain kinds of work in future, like the heavy physical labour of his last job. And they left Keith with limitations even when it came to office work.

This meant he would no longer be able to do the shipyard work he used to, which involved lifting heavy loads plus some more skilled work. As well, he’d likely not be able in any future job or career to work the same long hours as he could before the accident, despite his good work ethic and diligent efforts at rehabilitation afterwards. He also couldn’t type or take notes like before. This impacted his university studies and would affect any office work he’d be doing going forward. He would also probably always have difficulty with office activities where he’d have to maintain a fixed posture for an extended period.

The defendant argued there was no loss of earning ability (that Keith could earn more at office work), or at most it was worth some $54,000. Keith claimed his future income loss came to about $298,000.

The court emphasized the assessment is a matter of judgment, not simply a mathematical exercise. It requires estimating future probabilities, possibilities, contingencies and risks, when comparing Keith’s working future now with what it would have been if the accident hadn’t happened. Once Keith had proved there was a real and substantial possibility his future income earning ability had been reduced, which he did, the court then has to quantify the loss taking these future eventualities into account. Here, the B.C. Supreme Court outlined various approaches courts use to quantify the financial harm of the injured person’s reduced earning ability, depending on each unique situation. They all have the common aim of putting the accident victim in the same financial position as if the accident had not occurred.

In this case, the court concluded that Keith’s future annual earnings over his working life would be about $10,000 per year or 13% less than before. This amounted to roughly $300,000 in terms of present day money. After subtracting $75,000 (as Keith had started university earlier than he would have otherwise), the court awarded him $225,000 for his reduced future earnings capacity.

If you’re injured in a car crash, consult an experienced personal injury lawyer to help you receive the compensation you’re entitled to.

This column has been written by Janice Mucalov LL.B as part of “You And The Law”. It provides information only and must not be relied on for legal advice. Names of the parties in reported cases have been changed or removed to protect their identity. Lawyer Janice Mucalov is an award-winning legal writer.

Fixtures Vs. Chattels: What Stays When You Buy A House?

Posted in: Real Estate- Apr 18, 2018 Comments Off on Fixtures Vs. Chattels: What Stays When You Buy A House?

What stays and what goes when you buy or sell a house or condo? This can become contentious and more trouble than the money value involved. Sometimes it’s the buyer who’s disappointed when she discovers on moving in that the gilt-framed, wall-mounted hallway mirror she loved is gone. Other times it’s the seller who is surprised to learn he shouldn’t have taken along that hot tub on his back deck when he moved out.

Such disappointed expectations can sour your relations with the other side, resulting in hours on the phone with your realtor or lawyer. You could even end up in court. So what are the rules about this, and is there a fix?

At its most basic, any item that just sits on the floor, unattached and portable (like a dining room table) is presumed to be a “chattel,” meaning a piece of tangible, moveable personal property – so it’s something the seller can take away, unless it’s been written into the purchase contract as an included item.

In contrast, any item that is attached or “affixed” to the land (like the house itself) or the floor, walls or ceiling (with screws, nails or glue, say) is presumed to be a “fixture,” meaning a chattel that’s become part of the real estate – so the seller cannot take it away, unless the purchase contract says otherwise. (There are special rules for tenants’ trade fixtures.)

But note, when something is “presumed” to be either a chattel or a fixture, that leaves the door open to prove the opposite in court. And the court will look at this objectively, not from your point of view, but by using some hard-to-apply guiding principles.

Trouble is, if the contract is silent, this all leaves a lot of grey areas where it’s not obvious if something is a chattel or a fixture. What about pictures hanging on picture hooks? What if they’re directly attached to the wall? Or drapes on rods – if the drapes can slide off, and the rods just sit in attachments screwed into the wall? How about TV’s sitting in wall-mounted brackets? Light fixtures like that expensive dining room chandelier? Central vacuum systems, partly built-in but with lots of loose or removable attachments? Washers, dryers, kitchen appliances? How about the fancy stainless steel refrigerator that’s just plugged in to the wall socket? A table-top microwave oven?

Or how about a greenhouse or utility shed in the backyard? In a 2010 case, the court decided the greenhouse and utility shed were chattels, sitting unattached and easily moved, so the seller could take them. Here are some other items in dispute in that case: fire pit bricks (fixtures), planters (chattels), outside water tap handle (a $9 item – fixture), unattached shelving (chattels), screwed-in kitchen can opener (fixture), wall-mounted mirrors (fixtures), candle holders hanging on screws (chattels).

So what’s the fix? For any important item, spell out in the purchase contract if it is included and must stay, or if it is excluded and goes.

This column has been written by Janice Mucalov LL.B as part of “You And The Law”. It provides information only and must not be relied on for legal advice. Names of the parties in reported cases have been changed or removed to protect their identity. Lawyer Janice Mucalov is an award-winning legal writer.

Uncommon Car Accident Injury Nets Compensation

Posted in: ICBC / INJURY- Apr 17, 2018 Comments Off on Uncommon Car Accident Injury Nets Compensation

Car accidents happen far too often and so, unfortunately, do car accident injuries. Such injuries can range from minor ones that disappear within days to major, sometimes truly tragic permanent ones, and everything in between. Sometimes they’re physical, sometimes they’re psychological, and often they can be both.

A recent 2016 case offers an illustration. Our court was asked to figure out liability (responsibility) for the accident and the appropriate compensation for an unusual constellation of injuries.

Jack’s SUV was rear-ended by Donald’s car (both names changed) at an intersection in Vancouver back in 2006.

The court first had to determine if Jack was partly responsible for the accident by stopping too suddenly. But it decided the accident was Donald’s fault alone.

The court then had to deal with what compensation to award Jack for his loss of life enjoyment (sometimes called pain and suffering) from his car accident injuries. Some of these were only temporary, like stiffness and pain in his shoulders and back which cleared up in a few months after the accident, but some were long lasting.

It turned out that Jack had a fairly long history of earlier medical and psychological problems, including tongue cancer, degenerative spinal disc issues, osteoporosis and depression. Some of his post-accident medical difficulties were due to these pre-existing conditions, said the court. For example, the neck pain he still had ten years after the accident wasn’t the result of the accident, but rather was due to his ongoing degenerative disc problem.

But the court also heard expert medical evidence that Jack’s vertigo, including dizziness and balance problems, was caused by the car accident. This was diagnosed by an experienced specialist as “Visual Vestibular Mismatch” – a condition that can be brought about by trauma (injury) and can lead to dizziness in certain surroundings.

Jack initially experienced spells of vertigo several times a week, sometimes for five or ten minutes, but occasionally for hours. He only started having vertigo after the car accident. In the years after, his vertigo came and went, but he still had it by the time of the court hearing (ten years later), and it was unlikely to improve in future. It meant he was less steady on his feet and needed more help around the house and to go places.

His vertigo also led to an accident later where he fell onto a chair because he was dizzy and suffered a groin injury. Discomfort from that fall still persisted at the time of the court hearing.

The worsening vertigo and impairment also deepened his depression. He now struggled with feelings of worthlessness, anxiety at night, suicidal thoughts and overall hopelessness about his situation.

The court pointed out compensation for loss of life enjoyment is not an exact science, but it must be fair and reasonable. It decided to award him $110,000 for the injuries that could be traced to the accident.

This column has been written by Janice Mucalov LL.B as part of “You And The Law”. It provides information only and must not be relied on for legal advice. Names of the parties in reported cases have been changed or removed to protect their identity. Lawyer Janice Mucalov is an award-winning legal writer.