ICBC claims - What is Loss of a Capital Asset?

If you have been involved in a motor vehicle accident where you were not at fault, you likely know that you are entitled to be compensated for your pain and suffering and for any out-of-pocket expenses, such as medication costs, costs for treatments from physiotherapists, etc.

What you are also likely clear about is that you can claim the money you will lose if you are unable to go back to your job. What you may not be aware of is that even if you are able to go back to your job, you can still make a claim for compensation if you have been left less capable of some types of work.

The Courts have developed a four-part test to determine whether or not you are entitled to financial compensation in those cases where you have returned to your previous job. This type of claim is sometimes referred to as 'Loss of a Capital Asset'. The four parts of the test are:
1. Are you less capable? 2. Are you less marketable, or less attractive as an employee? 3. Have you lost the ability to take advantage of all job opportunities which might otherwise have been open to you? 4. Are you less valuable to yourself as a person capable of earning income in a competitive labour market?

Let me give you an example:
I was recently retained by a fellow who was walking across the street with the walk sign and was hit by a car making a left-hand turn. The car was clearly in the wrong. My client's knee was badly broken but one of Vancouver's best surgeons was on call that night and did such a good job of repairing the knee that six months of rehab later, he was able to return to his previous job. It was a unionized position, which meant he had good job security and the company he worked for was very large, so unlikely to go out of business any time soon. On the face of it, my client had only a claim for pain and suffering and for out-of-pocket expenses. In looking at the four part test, we determined that: 1. he was less capable - he had been unable to regain full range of motion in his knee; 2. he was less marketable - some employers would be less likely to hire him with this permanent restriction; 3. he would be unable to take advantage of some job opportunities in the future - e.g. he would be unable to apply for jobs that were physically demanding; 4. with all of the proceeding, it was clear that he would feel less valuable and less confident in the competitive labor market. We argued that in addition to compensation for pain and suffering and out-of-pocket expenses, he was entitled to compensation for Loss of a Capital of Asset. At mediation, we were successful in obtaining $200,000 for just this part of his claim.

So, remember - even if you are able to return to your pre-accident job, you may be entitled to compensation for Loss of a Capital Asset.