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Loss of future earning capacity.

• What questions do the court and ICBC ask when they are valuing the loss of future earning capacity of an injured person?
• In determining the loss of future earning capacity of an injured person, judges and juries ask themselves the following questions:

  Is he/she less capable overall from earning income from all types of employment?

  Is he/she less marketable?

  Has he/she lost ability to take advantage of all job opportunities that might otherwise have been open to him/her?

  Is he/she less valuable to himself as a person capable of earning income in a competitive labour market?

  The court will also ask itself what the difference will be between:

  the value of the future income flow of the injured person had he/she never been injured, and

  its reduced value as a result of the collision.

  During negotiations, both ICBC and your lawyer will consider how the courts value these claims.

  You do not have to prove that there is a greater than 50% chance (that it is more likely than not) that you will suffer a loss of income in the future. You just have to prove there is a "real possibility" that you will lose income in the future. In its award, the court must express the degree of possibility of your future income loss, e. g. , 'you should be compensated for a 5% chance of future income loss. '

  The court must also take into account the uncertainties of your income 'absent the collision' (if the collision had never occurred) and of any increased uncertainties as a result of the collision. For example, absent the collision:

  You may have experienced the average rate of unemployment of your occupation. Teachers have a much lower average unemployment rate than do construction workers;

  You may also have retired earlier than age 65 due to illness or your own choice, or you may have chosen to work beyond age 65;

  You were largely protected from the uncertainty of ill health by your employer's contribution to your benefits package.

  Your chances of a reduced income for each hour you work and of unemployment and early retirement due to your injury may now be much higher. These chances are not easy to quantify except in the case of injured people who clearly will never be able to work again. In many cases, economists provide statistics on these chances, which are called "labour market contingencies. " They also provide statistics based on census data and surveys on the average income over time of a full-time worker in a particular occupation and educational level. There is a high correlation between people's level of education and their income over their working life. These statistics allow a judge or jury to more accurately value a person's lost earning capacity. You may be able to prove that you would have earned a more-than-average wage for your occupation or educational level based on your pre-accident track record.

  While the facts of some cases lend themselves more readily to the application of statistical and mathematical evidence in the assessment process than do those of other cases, the Court of Appeal has made it clear that valuing future loss of income is not purely an arithmetical exercise. The most important question is whether the award is "fair and adequate" to compensate the injured person for his or her lost future capacity to earn income. Of course, this is a fairly vague concept unless one bases it on at least some mathematics.