What happens if your car accident forces you to retire early?
In British Columbia, the normal retirement age for an individual to start receiving the Canada Pension Plan and Old Age Security Pension is 65 years of age. Based on this, courts in BC will often set 65 years of age as the standard age of retirement. However, often individuals will plan on working past the age of 65, perhaps to the age of 70 or older. This could be for many reasons such as financial planning or because they just love their job.
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So how does this standard retirement age of 65 impact an individual involved in a motor vehicle accident?
If a plaintiff (injured person) in a car accident is forced to retire earlier than planned due to their accident injuries, then they may be entitled to their loss of future income (also called loss of earning capacity) as part of their ICBC settlement. In other words, the Court will look at a) how much you would have made in the future and b) when you were going to retire. The judge then gives you an award for that amount which stops at the date you would have retired.
If a plaintiff was planning on retiring at 65 or younger, then likely their verbal evidence will be enough to rely on to determine their retirement age. In other words, most judges likely assume a person would retire at age 65. However, if prior to a car accident, a plaintiff was planning on working beyond 65 years of age, it may be more difficult to prove. Aside from their own verbal evidence, a judge will often look at the following factors:
- If the plaintiff had conversations with their boss or co-workers regarding their retirement age,
- The age their spouse was planning on retiring,
- The average age people in their career normally retire,
- Any previous injuries that may limit their ability to work in the future, and
- Their financial position (i.e. when can they afford to retire?).
In other words, if you want to make a judge believe you would have worked past 65, you will need to prove that with evidence from others.
In a recent case, Cornish v Khunkhun, 2015 BCSC 52, a 63 year old female plaintiff was injured in a motor vehicle accident. She experienced pain in the neck, shoulders, and back as well as headaches, difficulty sleeping and depression. She was a home care worker and in the process of attempting to start her own home care business when the accident occurred. At trial, she testified that she had no plans to retire at age 65, and planned on running her business for many years, well past the normal retirement age. The judge at trial stated it was reasonable to assume that she would have continued working part-time until the age of 70 based on her oral testimony and her financial position. She was awarded $78,848 for loss of earning capacity.
In Mandra v Lu, 2014 BCSC 2199, a 60 year old male plaintiff was involved in a motor vehicle accident. He suffered from pain in his neck, back, legs, as well as headaches and depression. He worked as a millwright and testified that he was planning on working until age 70. The judge decided that he likely would have retired at 66, and not 70 as his wife would have retired by the time he turned 65, which in turn would have affected his plan to work until 70. In other words, the judge looked at the wife’s retirement age to conclude that the husband would not have worked until 70 as he claimed. He was given an award for lost earnings up to age 66, instead of up to age 70.
Lastly, in Mattice v Kirby, 2014 BCSC 657, a 56 year old male plaintiff was involved in a motor vehicle accident. He suffered from headaches as well as right shoulder, arm, elbow and hand complaints, including a partial thickness tear of his right shoulder. Before the accident, he had been working as an automotive mechanic for the past 24 years. He loved his job, and described his job as defining who he was. Prior to the accident, he was planning on working until the age of 70. However, before the accident he had a history of low back pain which the judge felt was likely to limit his ability to work to the age of 70. The judge felt it was reasonable to assume that he would have worked until the age of 67 with reduced hours as he got older. He was awarded $250,000 for loss of earning capacity.
As you can see from above, when deciding how much to pay you for your future lost income, the judge will want to know the “real story” from your friends and family when deciding what your retirement age would have been.
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