If you are injured in a motor vehicle accident as the result of or another’s wrongdoing (usually the operator of the vehicle in which you are a passenger, or the operator of another vehicle) one of the claims you could be entitled to make is compensation for loss of income.
Depending on the severity of the injuries and the resulting interference with your ability to continue to work, the loss of income claim could extend beyond the date that the claims are settled. This is called the loss of future earnings, or loss of the future opportunity to earn income.
If an individual who, prior to being injured, functioned in a physically demanding occupation is able to transfer into a different department or category of employment (less physically demanding) with the same company earning about the same amount of income. The question remains: does the injured individual still have a loss of income claim?
Our Courts have reviewed this question over the years with differing results. Needless to say, the lawyers for the negligent driver (usually hired by his Insurance company) will say, if you are making the same money as you made prior to the injury, you cannot show a loss, therefore you have no claim. Make sense?….maybe not. Here is what the Courts will consider:
- a) To the extent possible, a plaintiff should be put in the position he/she would have been in, but for the injuries caused by the defendant’s negligence;
- b) The central task of the Court is to compare the likely future of the plaintiff’s working life if the Accident had not occurred with the plaintiff’s likely future working life after the Accident;
- c) The assessment of loss must be based on the evidence, but requires an exercise of judgment and is not a mathematical calculation;
- d) The two possible approaches to assessment of loss of future earning capacity are the “earnings approach” and the “capital asset approach
- e) Under either approach, the plaintiff must prove that there is a “real and substantial possibility” of various future events leading to an income loss;
A difficult hurdle for the plaintiff can often be proving that there is a real and substantial possibility that future events could lead to an income loss. However, the law is clear that although they may continue to earn the same income a plaintiff can still recover damages for future impairment.
The means by which the value of the lost, or impaired, asset is to be assessed varies of course from case to case. Some of the considerations to take into account in making that assessment include whether:
- The plaintiff has been rendered less capable overall from earning income from all types of employment;
- The plaintiff is less marketable or attractive as an employee to potential employers;
- The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and
- The plaintiff is less valuable to himself as a person capable of earning income in a competitive labor market.
We have what the experts refer to as human capital (skills and knowledge which employers value) and when that has been damaged we are entitled to be compensated. Every case must stand on its own and have the evidence to make the argument…but don’t rule out this area of compensation, just because your paycheck for the moment is what it was before the injuries.The information provided above is for educational purposes only. This information is not intended to replace the advice of a lawyer or address specific situations. Your personal situation should be discussed with a lawyer. If you have any questions or concerns, contact a legal professional.