09 May Loss of Income for Plaintiff with Past Addiction Issue

In the case of Kirilenko v. Bowie, 2017 BCSC 2048, the Plaintiff was a cocaine addict who was badly injured in a motor vehicle collision.  His injuries included nerve damage to his left leg, internal injuries, and a brain injury.

The fact that the Plaintiff had a cocaine addiction prior to the accident was important.  The evidence at trial was that prior to the accident the Plaintiff’s ability to function in the workforce was severely impaired by his cocaine abuse.

The Court took judicial notice that cocaine has the capacity to be highly addictive.  Even with treatment, heavy users face a significant long-term risk of relapse.  The Court took this risk into account in the assessment of the Plaintiff’s loss of earning capacity.

The Plaintiff had been a flooring installer, although he had been unemployed for 9 ½ months prior to the accident due to his drug use.  Before his drug addiction interfered with his employment, the Plaintiff had demonstrated the ability to earn in the range of $40,000 annually. Based on this, he submitted that past income loss for the last 22 months should be assessed at a rate of $40,000 per year, totaling $73,000. The Defendants submitted that the Plaintiff should not be awarded anything for loss of past earnings.

The Court found that due to the Plaintiff’s addiction there was no real and substantial possibility of him having been gainfully employed up to the time of trial.  The Court declined to make an award for loss of past earning capacity.

With respect to loss of future earning capacity, the Plaintiff’s experts viewed the probability of him returning to work as “extremely unlikely” and his vocational future as “grim.” The Plaintiff asked that future loss of capacity be quantified on the basis of an income loss of $70,000 annually, which yielded a lifetime loss of $1,787,730. The Plaintiff conceded that this figure would have to be reduced somewhat to account for the negative contingency of relapse in cocaine use. The Defendants argued that given the downward trajectory of the Plaintiff’s earnings prior to trial, the award for loss of future earning capacity should be limited to $200,000.

The Court held that the possibility of the Plaintiff earning an income at the top end of the range for floor installers had to be offset by possibly remaining virtually unemployable for the rest of his life due to addiction. The Court decided that in all likelihood, his income would have been limited to the mid-range of $40,000 annually. The Court then took into account the full range of positive and negative contingencies and reduced this to $25,000 annually, based on those contingencies.  The Court assessed the Plaintiff’s loss of future earning capacity at $1,000,000.