Products & Services

Court Testimony from Experts @ BEC

Excerpt from Williams v. Thomas Development Corporation

[2006] NLTD44

para. [327] At present, Dr. Williams is still working as a cardiologist and compared to some people her income would be considered to be very high. Yet, the past history has shown that Dr. Williams is unable to work at full capacity and it is possible she will have to end her career as a cardiologist earlier than would be expected, taking all things into consideration.

para. [333] The evidence presented at trial by Dr. Fehlings concluded that Dr. Williams, by continuing to work at full capacity, was certainly not doing herself any favors. This was commented upon by Ms. Brown in the actuarial reports as a basis for assessing Dr. Williams' future loss of income claim. Dr. Fehlings in a letter dated December 6, 1999 explains the problem when he observes:

"As a result of Dr. Williams' injuries, she has been unable to practice as an interventional cardiologist. This has had a major detrimental impact on her livelihood and income. Dr. Williams is essentially working a half time and is no longer taking call. Accordingly, I would estimate that Dr. Williams is only working at approximately 40 % of her previous capacity. I expect this to be a permanent level of disability."

para. [338] Assumptions that Ms. Brown made were from the information provided. This information has been corroborated throughout the trial by a number of witnesses in relation to her ability to carry on a full time practice. On page 15 Brown states that:

"From 2004 and onward, we assume she will earn with-incident gross MCP and non-MCP income of $270,312 based on annualized figures of Dr. Williams' actual billings for the first half of 2004. As in the without- incident scenario, we assume that she incurs expenses of $106,767 based on her annualization year-to-date expenditures for 2004. This implies with-incident net professional income of $163,545."

Further in the report on page 15 it states:

"For the year 2004 we have estimated Dr. Williams' with-incident income as $270,312. In comparison, the average gross earnings of Dr. Williams' colleagues is $559,067. Based on this comparison we note that Dr. Williams' gross earnings are approximately 56 % of average over the period 1997 to 2004 (as per Table III-2 below), although we note that since 1998 this percentage appears to have been declining. We note that if Dr. Williams is currently only working 40 % of her previous capacity (as suggested by Dr. M. Fehlings and echoed by Dr. Hutton) this would imply her without-incident earnings could have been considerably higher than average."

para. [341] In Ms. Brown's assessment of future loss of income, she set out various scenarios of retirement with and without incident, for ages 50, 55, 60, 62 and 65 years for the retirement age and the future loss of income associated with each particular scenario.

para. [342] She also outlined a formula to follow should the court not accept the figures for the average gross salary of cardiologists and the expenses of Dr. Williams as given at trial. At page 23 of her report she allows for an explanation of how the formula could be adjusted to arrive at a future loss of income. In the example given on page 23 of CB No. 2 she set the multiplier factors for the with and without incident for the various ages of retirement. This would allow the court to arrive at its own final figure on future loss of income, should the figures outlined by the actuarial report not be acceptable.

para. [343] In the case of calculation of the future loss of income, Ms. Brown built in a 10 percent negative contingency factor to account for future possibilities of Dr. Williams not being able to continue work for whatever reason related to her present injuries. The difficulty in this case with the assessment of future loss of income is that it is dependent on whether Dr. Williams actually retires at a date prior to 65 years. Dr. Williams may decide to continue working if, in fact, she can. There are many areas where Dr. Williams can earn income, i.e., consulting fees, insurance companies, assessments, reading echocardiograms, which according to Dr. Stone is a lucrative business. Dr. Williams is also able to do stress tests for patients and consult patients with problems. What she cannot do is the intervention side of cardiology in the catheterization laboratory, nor can she do call the very thing for which she trained herself and for which there is a much higher income.

Future Loss of Income Analysis

para. [345] The Plaintiff claims future loss of income and past loss of income as set out in her brief for pecuniary damages to make a total loss of earnings of $7,250,000.00. This figure includes past lost income plus pre-judgment interest in the amount of $1,967,000.00.

para. [346] As outlined in paragraphs 319 and 320 above, I am satisfied that the $1,967,000.00 for past lost income and interest has been proven on a balance of probabilities as being a true loss for the Plaintiff.

para. [347] The Plaintiff is also claiming for future loss of income as a result of the injury she received caused by the ditch accident on September 8, 1993. She claims that she would have continued to work until retirement age at 65. Now the Plaintiff claims her retirement age should be set at 50 due to her level of activity and the potential for future surgery to T6 T7 as set out by Dr. Fehlings in his evidence and a letter dated November 26, 2002 as cited by Ms. Brown on page 17 of her report, CB No. 2.

para. [348] Ms. Brown in her report at B1 on page 34 sets out what the future loss of income would be. The assumptions made are that if Dr. Williams did not have the motor vehicle accident, her income from 2005 onward, before taxes, would be $457,300.00. Her expenses would have been deducted and would have been about $106,000.00 per year rounded. This would be based on average salaries of non-university interventional cardiologists as was set out in CO No. 1 and evidence given by Ms. Owens. Doing the calculation and including contingencies of up to 10 percent for mortality and disability, the loss of future income would amount to $5,130.727.00 for a total claim of just over $7,000,000.00 for past and future loss of income.

para. [349] Many things could change these projections. For instance, an increase in the number of cardiologists sharing the same pool would reduce the average annual income. Expenses could dramatically increase. The Plaintiff is assuming she would retire at 65, yet on average, female professionals retire at age 62, according to some of the tables used by Ms. Brown. In the case of Dr. Williams, there is the added problem that she had experienced pre-accident with her lower back in the lumbar spine. This was referred to in Dr. Smith's report under "past history". There was evidence of lower back pain referred to as mild and never requiring any time off because of it, in his report. In November of 1990 she had mid-back discomfort intermittently, according to his report. There was some evidence of mild scoliosis, this is also referred to by Dr. Jefferies. Much was made of these symptoms pre-accident and the Defendants attributed Dr. Williams' present condition to these earlier problems. I have found otherwise on the evidence as it relates to the issue of causation. However, these are factors to be considered as it relates to the future loss of income and Dr. Williams' ability to work to the age 65, assuming there was no injury.

para. [350] Taking into account the medical evidence presented at the trial and the evidence presented from colleagues and employees, I am satisfied that Dr. Williams would have continued to work, assuming no accident, until age 62. Dr. Williams liked to travel and play golf. She was maintaining a high level of income and she certainly would have been able to well afford to retire at age 62. This is assuming there is no accident and no resulting permanent disabilities.

para. [351] As to her future retirement, it is quite possible that she may now stop working well before that age due to her deteriorating health and the prospects of future surgery. This future surgery may not become necessary and she may continue to work. If she does work, it would certainly be at no more than 50 percent capacity because, as Dr. Fehlings indicated in his evidence, if she does not slow down, it certainly is going to cause future disability and greater chances of surgery.

para. [352] I have therefore concluded that any future loss of income should be based on the retirement age of 62 years, without incident. If Dr. Williams works until 55, then the future loss of income has been set out in Ms. Brown's actuarial report at B13. She concludes future loss of income would be $3,771,113.00 to age 62.

para. [353] As discussed earlier, contingency of 10 percent for mortality and disability factors is built in to those figures. To account for contingency such a Dr. Williams being able to continue to work at 50 percent capacity or in an another field to add to her income is also a possibility. I would consider that a further 40 percent reduction for negative contingencies is in order in this particular case. Dr. Williams is highly educated. There are possibilities for her in the work force, even with her present disability which could allow her to earn substantial income. As such, the claims for future loss of income is reduced by 40 percent. I would therefore assess future loss of income to be $2,262,668.00 (rounded to nearest $500.00) $2,262,500.00. This reduction for negative contingency is quite reasonable under all of the circumstances, including her prior medical history, her education and her ability to earn some income, at least to the 50 percent level, as she has done since the accident. I am therefore awarding future loss of income of $2,262,500.00 under all of the circumstances.

para. [354] In arriving at the discount of 40 percent over and above the 10 percent as worked out by Ms. Brown for future loss of income, the court is taking into consideration the Plaintiff's work history since the accident, the evidence of Dr. Stone and Dr. Hutton and Dr. Williams' genuine wish to work, if she is at all able to do so. By adhering to the actuarial report and arriving at my own assumptions as to Dr. Williams' future, I am able to at least be consistent in my method of calculation of the future loss of income. This figure for future loss of income is consistent with past loss of income, except I have discounted the future figure more than Ms. Brown has.

para. [356] The one comfort I have in using the basis of the actuarial report for future loss of income, as adjusted by myself, is that the actuarial was conservative in relation to Dr. Williams' future loss of income, based on the average cardiology interventionalists group. There is no doubt that some cardiologists in the group will, in fact, have salaries over $600,000.00 in the next 12 to 15 years. Dr. Williams may well have been one of them, yet the reality is that the court has to make conclusions that may or may not pan out. I am comfortable with the future loss of income award in this case, taking into consideration the evidence presented by the Plaintiff. The evidence clearly supports an award in the range as set out above. Some will argue it should be more, others will argue it should be less. For all of the above reasons, future loss of income for Dr. Williams is set at $2,262,668.00 rounded to the nearest $500.00 at $2,262,500.00, for ease of calculation.

Future Cost of Care

(A) Care Assistance

para. [360] To date, Dr. Williams has not had to claim under this heading. The actuarial report did cost out the future cost of care based on $100.00 a week at 52 weeks to amount of $5,200.00 per year. This is based on 10 hours per week of $10.00 per hour. According to Ms. Brown's report, future cost of care would, if starting at 55 with the incident amount to $69,440.00. The actuary used a multiplier of 13.4 to arrive at the present value. If the cost of care were to commence at age 60, the multiplier effect would be 9.8 to calculate the present value of the cost of care. In keeping with my assessment of Dr. Williams' present medical condition, her continuing to be in the workforce at a reduced capacity and assuming she will work until at least her mid 50's, I feel comfortable in allowing $5,200.00 per year from age 60. Using a multiplier of 9.8, a future cost of care award of $51,124.00 rounded to $51,000.00 is awarded for future cost of care.