Canadian Underwriter

Ontario court examines “crystal ball” of future loss of income

August 1, 2007   by

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A 62-year-old orthopedic surgeon in Windsor, Ont. has been awarded $844,450 in damages–including $714,000 based on a presumed future loss of income between the ages of 65 and 70– or injuries he sustained after being thrown from his bicycle when he ran over a raised catch basin.

Dr. Robert Yovanovich, 56 at the time of his injuries, was cycling along Prince Road in Windsor. The road had previously been closed to traffic, but was now open and free of any barricades and detour signs.

During his cycling trip, Yovanovich rode without incident over two catch basins that were flush to the road. However, he was forced to drive over a third, raised catch basin when he was passed by a dump truck. He was thrown into the air after riding over the elevated catch basin.

The surgeon, according to Ontario Superior Court Justice, suffered cuts and bruises, a separated left shoulder, mild nerve compression in the neck, right side sciatic numbness and a burning sensation in the right leg due to a compression injury in a nerve. While some of the injuries have healed, the surgeon still experiences various problems, including a shoulder deformity and varying levels of pain, which affects his work.

The judge awarded Yovanovich $100,000 in non-pecuniary damages “as solace for pain and suffering and loss of enjoyment of life.”

In addition, citing the Supreme Court of Canada decision in Andrews v. Grand & Toy in Alberta — in which Canada’s top court said estimating future loss of income is similar to gazing into a “crystal ball” — the Ontario Superior Court Justice awarded an additional $714,000 for a presumed loss of future income.

Ontario Superior Court Justice Johanne Morisette declined to award damages for loss of future income up until the surgeon reached the age of 65.

“I conclude that the plaintiff will continue working at his current level until he turns 65,” she wrote. “Thus, there is no future loss of income from the date of trial until the plaintiff reaches the age of 65.”

However, at the age of 65, the judge concluded, “there is a significant or substantial possibility that the plaintiff will begin to reduce the number of surgeries because of increased pain. Over the five-year period beginning at age 65, I conclude that the annual surgery and office consultation income will decline by 50% of 2005 OHIP income (2005 OHIP income was $317,807 per Exhibit 35).”

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