If you have been injured in a car collision and cannot work, or your working ability is down to part-time, you can claim your lost wages from the auto insurance of the driver who was at fault and caused your injuries and impairment. Recovering past wage losses is straightforward, it is just a matter of proving the loss of income was “caused” by the collision and your doctor or occupational therapist agreed you could not work. It is just a mathematical calculation, minus the tax you would have paid. Recovering future income loss is much more difficult.
Two Types of Future Income Losses
Proving a future loss of income, especially long term, is more challenging. The injury victim must prove that there is a real and substantial possibility of a future event leading to an income loss. If the Plaintiff discharges that burden of proof, then depending upon the facts of the case, the Plaintiff may prove the loss, either on an earning/mathematical loss approach, or a capital asset approach. The earnings/mathematical approach will be more useful when the loss is more easily measurable, and the capital asset approach is more useful when the loss is not as easily measurable.
Burden of Proof
Note that when proving future losses, the burden of proof is not on a balance of probabilities, it is a lower burden of proof of simple probability. The Supreme Court of Canada has clearly said the standard of proof to be applied when evaluating hypothetical events that may affect an award is simple probability, not the balance of probabilities. The court went on to state that possibilities and probabilities, chances, opportunities, and risks must all be considered, so long as they are a real and substantial possibility and not mere speculation. So, in Handel Law Firm’s view if the future events are not mere speculation, but they were opportunities that are now lost and risks that the Plaintiff will now have then the Plaintiff should be compensated for it.
The Alberta Court of Appeal in Lowe v. Larue  A.J. No. 55, commented on this head of damages called loss of a capital asset or loss of earning capacity, “the authorities cited support the principle that where a future loss of earning capacity has been established as at least a reasonable possibility and not mere speculation, the loss of a chance or an opportunity to earn a certain level of income in the future may be taken into account in calculating the loss of future income, a loss of which may otherwise be difficult or impossible to assess” (page 9, par. 51).
You Can Make a Future Wage Loss Claim Even If You Are Back to Full-time Work
With respect to the loss of earning capacity the courts have stated that it is “loss of earning capacity as a capital asset that requires compensation”, not just a mathematical calculation of the past wage loss. The courts have said, because it is impairment that is being redressed even a plaintiff who is apparently going to be able to earn as much as he could have earned if not injured, he is still entitled to some compensation for the impairment. He is entitled to it because for the rest of his life some occupations will be closed to him and it is impossible to say that over his working life the impairment will not harm his income earning capacity.
Some of the considerations to be considered in assessing the value of a lost asset include:
- Whether the plaintiff was less capable overall;
- Whether a plaintiff was less marketable;
- Whether the plaintiff had lost the ability to take advantage of all job opportunities which might have been available had he not been injured;
- Whether the plaintiff was less valuable to himself as a wage earner.
As you can read, this is a complex area of law. To make sure you receive fair compensation that our courts have said you are entitled for your injury and impairment contact Handel Law Firm and speak to one of our experienced injury lawyers. Do not leave your future wage loss compensation to chance or to the advice of the insurance adjuster. The insurance adjuster does not act for you. In fact, he or she acts against you trying to minimize your compensation and maximize the insurance company profits on your back!
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