Determining Loss of Earning Capacity Before A Career Takes Off

There are many types of compensation that can be awarded to people involved in automobile or other types of accidents. Loss of future earning capacity is one such form of compensation. Loss of future earning capacity is designed to compensate people who are no longer able to earn the same type of income they did before an accident. Assessing loss of future earning capacity may be relatively straightforward for someone in the middle of their career, but what about people who have yet to enter the workforce? Such a question was recently addressed by the Court of Appeal for British Columbia.

The accident and the first trial

The plaintiff was injured in a motor vehicle accident in Kamloops, British Columbia, on September 23, 2012. She was a passenger in a vehicle driven by the defendant. The insured testified that she suffered a mild-traumatic brain injury (MTBI) in the accident, as well as soft tissue injuries to her neck and back, and numerous contusions and abrasions. As a result, she suffered “post-concussive syndrome, major depression, chronic pain syndrome and post-traumatic stress disorder (PTSD).”

The plaintiff was a university student, and was planning on pursuing a career as a journalist, something she would be unable to do as a result of her injuries. She was no longer able to work full-time and would have to find an employer who could accommodate her injuries. In the years leading up to the trial she held, and then lost a job in journalism. She held a number of other jobs in the years leading up to the original trial in 2015, but was let go of her jobs as a reporter and an admin assistant at a university.

The defendant admitted his liability before the trial, which was held to assess damages. At trial, the insured was awarded:

• $85,000 for non-pecuniary loss;
• $53,233 for past wage loss (Gross);
• $200,000 for loss of future earning capacity;
• $61,308 for cost of future care; and
• $8,741.20 for special damages.

The plaintiff appealed the trial judge’s decision, arguing the trial judge erred by assessing the her loss of earning capacity by reference to other case law rather than the particular facts and evidence of the case.

Determining loss of future earning capacity

The trial judge accepted that the plaintiff suffered a loss in earning capacity, but rejected that she could only work part time. The trial judge assessed the plaintiff’s earning capacity, writing she was:

“Rendered less capable overall from earning income from all types of employment. Prior to the accident, (the plaintiff) was not restricted, except through education and experience, from pursuing many types of employment. Now, she is less marketable or attractive as an employee to potential employers, as she is likely to need some form of accommodation for her neck, shoulder and back injuries. She has lost the ability to take advantage of all types of employment that might be open to her, but for her injury.”

The plaintiff submitted a report prepared by an economist that outlined earning estimates for journalists, administrative assistants, and legal administrative assistants. However, the report was premised on the assumption that the plaintiff was no longer able to carry out these duties. However, the trial judge failed to find substance in these assumptions, finding she had lost her job as a reported due to cutbacks, and lost her job as an administrative assistant because she was not trained or experienced in the role.

In assessing the loss of earning capacity, the trial judge noted that a strictly mathematical approach would not do because the plaintiff was in the early stages of her career. Instead, the court relied on a contextual approach followed by the courts in previous decisions.

When awarding the plaintiff $200,000 for loss of future earning capacity, the trial judge wrote,

“(the plaintiff’s) loss of earning capacity is based on jobs that require lifting, such as the liquor store and Mark’s. These kinds of jobs allowed her to attend school and obtain her degree. (The plaintiff) continues to pursue freelance journalism. Employment such as (as retail store), the liquor store, and care aide require lifting, which she is foreclosed from pursuing as a result of her injuries. I find there is a real and substantial possibility that (the plaintiff) will not be able to assume some employment positions and responsibilities due to the injuries she suffered in the accident.”

On appeal

The court did not agree that the trial judge committed an error by not relying strictly on mathematical anchors, since there weren’t any available. The wage loss report provided by the plaintiff was dependent on acts that were not established as evidence at trial. There was no evidence that she could not work as a journalist of an administrative assistant because of her injuries. She lost these jobs for reasons totally removed from her injuries.

At Derfel Injury Lawyers, we represent clients injured in automobile accidents, as well as other types of accidents, and work tirelessly to achieve the best possible resolution for them. Our personal injury lawyers have years of experience in helping our clients obtain the accident benefits to which they are entitled.  Contact us by phone at 416.847.3580 or reach us online to speak to one of our personal injury lawyers today.