The Wagners - A Serious Injury Law Firm blog shares Personal Injury stories and opinions relevant to Halifax, Nova Scotia residents. Let us know what you think.

Car Accident Injury Award Upheld on Appeal

Victor Lewin - Thursday, April 26, 2012

Personal injury lawyers for an injured car accident victim successfully argued that correctness of a trial decision awarding damages for his brain injury.

The injured man was involved in a car accident several years ago. He unfortunately suffered a brain injury resulting in cognitive decline. On his behalf, personal injury lawyers in Nova Scotia brought an action against the individual whose negligence caused the car accident. The amount of damages was contested. The injured man argued that his brain injury resulted in a diminished capacity to earning future income.

He argued that he would be less marketable to future employers and that his career opportunities were more limited. Lawyers for the defendant's insurance company argued that his work capacity (and future income) was not affected by the car accident. The parties were unable to settle the claim before trial.

After a five day trial in Nova Scotia, the trial judge agreed with the injured man. He summed up the factual background as follows:

Richard Vogler, a very bright and popular twenty year old from Halifax, was asleep in the back seat with his seatbelt unbuckled when the gust from a passing tractor trailer sent the mobile home into a fishtail. The driver could not keep control. Mr. Vogler was hurled from the car as it crashed.

Mr. Vogler hit the ground with the kind of violence that causes the brain to bang against the inside of the skull. Also, the skull was fractured, and his brain suffered blunt trauma from that. The flesh of Mr. Vogler's right forearm was horribly torn, and one eye was badly damaged. His right chest was punctured and his lung bruised. Ribs and the pelvis were fractured.

For a time the question was whether Mr. Vogler would die. He lived. Then, the main question was what would be left of his faculties. He made a remarkable recovery thanks to good hospital care in the United States and Canada, to his parents' intense campaign of treatment involving professionals, family, and friends, to Mr. Vogler's own intellectual and spiritual strengths, and to sheer luck.

That much said, Mr. Vogler suffered brain injuries that were severe in the beginning, and there are some lasting effects. The extent and consequences of those losses are the most controversial issues for assessing Mr. Vogler's damages.

On these facts, the trial judge awarded the injured man general non-pecuniary damages (pain and suffering) at $150,000.00. He assessed damages for loss of income earning capacity at $180,000.00. The defendants appealed these awards to the Nova Scotia Court of Appeal.

The Court of Appeal found in favour of the injured man and dismissed the appeal. The Court reasoned as follows:

The trial judge had very extensive medical and other evidence before him, and was in an ideal position to determine the severity of the injuries for assessment purposes. His assessment was $150,000.00, for the combination of brain inury and loss of vision - each of which would alone command a significant award - and for the other injuries suffered. The appellants say this award is too high. We disagree. It is within the range of reasonable outcomes for the severe injuries suffered by the respondent.

Regarding the assessment of damages for loss of future income, or income earning capacity, the trial judge acknowledged the challenging task and noted that it involved making educated guesses about the life trajectory that Mr. Vogler would have enjoyed, but for the accident, and comparing this to the life that he is currently living.

On the basis of considerable evidence it was the trial judge's conclusion that the injuries have led to "information processing and memory deficits", and that but for the accident, Mr. Vogler would have been capable of "meaningful work". The result being that his injuries would probably translate into lower earnings in the future. Consistent with the case law, he opted to use a "global" rather than an actuarial approach and arrived at a figure for loss of future income earning capacity of $180,000.00. The appellants argue that this assessment is contrary to the evidence. Again we disagree. There was more than ample evidence to support the trial judge's findings and conclusions in making his award of loss of future earning capacity.

Essentially, lawyers for the defendant's insurance company tried to argue that there was not enough evidence to support an award for diminished future earning capacity. The Courts disagreed. It is impossible to know what an injured person's work situation would have been "but for" the injuries. However the Courts observed in this case that judges must make an "educated guess". If this "guess" leads to the conclusion that the life trajectory has been altered by the accident, and therefore future income loss is "probable", a loss of future earning capacity award will be granted.

In this case, the car accident caused "information processing deficits". It is impossible to know whether these deficits would result in a loss of future income, but the judge ultimately used an "educated guess" to conclude that they would. This case is an important affirmation from the Nova Scotia Court of Appeal of on the threshold required for a future earning capacity award.

Back to blog