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Loss of future earning capacity.
- I was a student when I was seriously injured and can no longer do mentally challenging jobs. How do I prove the value of my lost future earning capacity when I don't have a track record?
- Please see the answers to the first two questions to get a sense of the general principles governing claims for loss of future earning capacity.
You have raised two issues. Firstly, what is the value of your earning potential had the collision never occurred? Secondly, what is the value of your earning potential now? Your loss of future earning capacity is the difference between the two.
First, let's look at your earning potential 'absent the collision. ' In order to value this, the court will place a great emphasis on the likelihood that you would have achieved various educational levels had you not been injured. The courts do this because there is a strong proven correlation between a person's educational level and income over his or her working life. For example, on average, women with university degrees earn more over their lifetimes than do women with 2-year college diplomas even though they start their careers two years later.
Important evidence to establish the chances that you would have attained various educational levels would be your:
- school marks before the collision,
- IQ before the collision if you were tested,
- former teachers' evidence about your intelligence, work habits and ambition,
- father's educational level (because there is a proven relationship between the educational achievement of a father and his children),
- stated ambitions and the steps you had taken to realize your ambitions before the collision.
If you had already chosen a career path and you were far enough along in your education, the court may rely on summaries of census data on the average full-time incomes over time (in 5 year increments) in that particular occupation and then consider average rates of unemployment, part-time work and withdrawal from the workforce over time. It would be challenging to persuade a court that you would have earned more or less than average as your career progressed, other than in exceptional circumstances.
If you are a young woman, it is crucial to try to establish that average incomes over time for males rather than females are the appropriate figures to apply to you. If, however, your evidence is that you intended to have children and stay home with them for several years, you will likely have some difficulty persuading a court to use male average incomes.
We discussed above how a court will view certain evidence rather than how ICBC will view it—in spite of the fact that most cases settle without a trial. Before ICBC negotiates with you, however, it will carefully consider how a court will likely look at your case.
The second issue is proving your future income as a result of the collision. You will likely need to be tested by a neuropsychologist. He or she will interview you and a close friend or relative, administer psychological tests and perform assessments to determine the extent of your problems with thinking, emotions and behaviour.
You will also likely need to be tested by a vocational rehabilitation consultant. He or she will interview you and administer tests of your interests and of various skills that are needed in various jobs. The consultant will then recommend jobs he or she thinks you would be capable of performing even part-time. He or she may give you options for retraining. Another type of vocational rehabilitation consultant will help find job placement for you, observe how you do in the real world and report on his or her findings.
Lawyers hire all three of these experts in order to assist their clients to maximize their potential and to prove the extent of their limitations.