Proving Loss of Future Earning Capacity While in School

A motor vehicle accident can leave you with debilitating, long-term pain that makes it impossible for you to return to your previous job. For this reason, B.C. law permits damages for loss of an accident victim’s “future earning capacity.” Calculating this category of damages is often easier said than done.

If the victim was regularly employed pre-accident and had a well-defined salary with a clear career path, a judge may not have too much difficulty in determining an appropriate award. But what about a victim who was unemployed at the time of the accident, or perhaps just starting out in their career with no clear prognosis of future success? How will a judge determine loss of future earning capacity in such cases?

Layes v. Stevens: Freelance Journalist Unsuccessfully Appeals Low Damages Award

A recent decision by the B.C. Court of Appeal, Layes v. Stevens, offers a helpful illustration of how judges deal with such cases. This personal injury claim revolves around a 2012 car accident in Kamloops. The plaintiff, who was 25-years-old at the time, was injured while riding in a vehicle driven by the defendant. The defence conceded liability for the accident itself, so the trial before the B.C. Supreme Court was solely on the question of the amount of damages owed to the plaintiff.

After a 10-day trial, the judge awarded damages in a number of categories. As relevant here, the judge ordered the defendant to pay $200,000 in damages for the plaintiff’s loss of future earning capacity. The defence did not appeal this award. To the contrary, the plaintiff appealed, alleging it was too low.

Here is some additional background. At trial, the plaintiff presented evidence that she sustained multiple injuries in the car accident, including a traumatic brain injury, post-traumatic stress disorder, and chronic pain syndrome. The trial court rejected most of these claims, however, and found that the plaintiff only sustained “some soft tissue injuries to her neck, shoulders and back that have resulted in chronic pain and headaches, and which have contributed to depression and anxiety.” The plaintiff did not challenge these findings on appeal.

Proving Loss of Future Earning Capacity While in School: Determining Future Career Value

Prior to the accident, the plaintiff had been pursuing a career in journalism. More precisely, she was completing a journalism degree at university and working part-time as a retail store clerk. She was unable to return to the retail job after the accident due to the “physical demands” of the position.

In the months and years following the accident, the plaintiff continued to find only sporadic, part-time work, a condition she attributes to her injuries. The plaintiff did obtain employment as a full-time journalist shortly after her graduation, but that position only lasted a month “as her employer was not satisfied with her writing skills.” As of the date of trial, the plaintiff “continued to work as a freelance journalist” earning less than $200 per month.

The plaintiff sought damages of between approximately $1 million and $1.5 million as “there were a number of positions she could no longer assume because of her physical limitations.” The defence disputed this proposition and suggested the judge limit damages in this category to just $100,000. As noted above, the trial court ultimately decided to award $200,000, which was obviously much closer to the defence’s position.

The trial judge agreed with the defendant that the plaintiff was not restricted to part-time employment as a result of her accident-related injuries. More to the point, the plaintiff’s employment prospects were “not that desperate” and with proper training, she could still find gainful full-time work. Nevertheless, the judge agreed she suffered some loss of earning capacity as she had “lost the ability to take advantage of all types of employment that might be open to her, but for her injury.”

Before the Court of Appeal, the plaintiff maintained the $200,000 award was “inordinately low” and did not constitute a proper estimate of her losses. But the appeals court was not sympathetic. Justice Richard Goepel, writing for the Court, noted there was no evidence that the plaintiff “could not work as a journalist or administrative assistant” because of the accident. To the contrary, she found employment in both positions post-accident, only to lose them due to “her failure to perform the standards required by her employer,” as opposed to her physical or mental limitations.

Furthermore, Justice Goepel said the plaintiff had “no settled pattern of employment.” This meant there was “no reliable mathematical anchors” for the trial court to employ when calculating a more precise damage award. Instead, the trial court based its decision on similar cases previously decided in B.C. courts. Justice Goepel said that was appropriate under the circumstances.

In the final analysis, the trial court’s $200,000 award represented an annual loss of $7,371 per year between the date of the trial and the plaintiff’s likely retirement at age 65. The plaintiff maintained this was too low, especially given the trial court also awarded her $13,300 per year for past wage losses. The plaintiff said the estimated future losses should be based on a similar figure. But as Justice Goepel explained, there is nothing in B.C. case law that says “awards for future loss of earning capacity and awards for past wage loss must bear some numerical or directly proportional relationship to each other.” In this case, the award of past losses were higher on a per-year basis because that was the time when the plaintiff “was most affected by her injuries.”

Contact Preszler Law If You Need Help Following a Car Accident

Every personal injury case is different. Just because the plaintiff in the case discussed above did not succeed in increasing her award for loss of future earning capacity, that is not to say all recent college graduates will fare just as poorly if they are faced with a similar situation.

This is just one reason it is important to consult with a qualified Vancouver car accident lawyer who can review your case and give you an honest assessment of your potential damages. Contact the Preszler Law Firm to schedule a free consultation with a member of our team today.

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CanLII

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