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Loss of future earning capacity.

• I can no longer do my former job due to my injuries. My employer gave me a lighter job at the same rate of pay. Do I have a claim for lost future earning capacity?
• The British Columbia Court of Appeal stated the following in a famous case called Palmer v. Goodall:

  "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 or who, with retraining, on the balance of probabilities will be able to do so, is 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 ability. "

  It is important to go back to fundamentals. Are you:

  • less capable overall from earning income from all types of employment?
  • less marketable?
  • less valuable to yourself as a person capable of earning income in a competitive labour market?

  And have you lost ability to take advantage of all job opportunities that might otherwise have been open to you?

  If so, you may have a claim for loss of future earning capacity even though you have not yet lost any income due to your injuries since your initial period of disability.

  The British Columbia Court of Appeal stated the following in the equally famous case of Pallos v. ICBC:

  "The cases to which we were referred suggest various means of assigning a dollar value to the loss of capacity to earn income. One method is to postulate a minimum annual income loss for the plaintiff's remaining years of work, to multiply the annual projected loss times the number of years remaining, and to calculate a present value of this sum. Another is to award the present value of some nominal percentage loss per annum applied against the plaintiff's expected annual income. In the end, all of these methods seem equally arbitrary. It has, however, often been said that the difficulty of making a fair assessment of damages cannot relieve the court of its duty to do so. "

  In Pallos, the Court of Appeal held that $40,000 was a fair amount for lost future earning capacity. Mr. Pallos was a labourer who suffered a leg injury resulting in permanent pain. After his accident, he could not do heavy lifting and was restricted to lighter duties and work that did not require him to climb ladders or stairs. He returned to work and earned more after the accident than he had prior to it.

  It is important to obtain legal advice on this complex issue. There is clearly no mathematical formula that can be used in these cases to arrive at a damages award, but the annual income of the injured person is certainly a consideration.