How are damages for loss of future earnings assessed? Does it matter how much I’ve worked in the past or what my capabilities are?
In the case Tourand v Charette 2015 BCSC 2165, released on November 26, 2015, the British Columbia Supreme Court assessed damages for the loss of income earning capacity where the plaintiff was a stay-at-home mom with minimal working history. The plaintiff, Ms. Tourand, was a 48-year-old woman suffering from lasting back and neck pain after a motor vehicle collision. Ms. Tourand not only had a very limited work history, she had no real education or training that might make her more employable. Further, intellectual testing conducted by counsel for the defendant indicated that Ms. Tourand’s non-verbal intelligence and reading comprehension levels were far below the average.
Despite all of this evidence, however, the court awarded the plaintiff $220,000 for loss of future earnings. Ms. Tourand’s husband told the court that he had been pressuring Ms. Tourand to get a job to help contribute to the family’s finances. The award was therefore based on the real and substantial possibility that but for the crash, Ms. Tourand would have found some employment within her capacity in order to support her family. To reach the $220,000 figure, Mr. Justice Joyce looked at the sort of job Ms. Tourand likely would have been able to work and awarded her an amount equal to part-time earnings in that field through to the standard age of retirement at 65:
[140] On the basis of the whole of the evidence, I am satisfied that Ms. Tourand’s capacity for earning income in the future has been impaired and will continue to be impaired in the future. However, she had limited employment history prior to the Accident; and her future prospects for employment, if she had not been injured in the Accident, were likely limited to rather low paying entry-level type positions. Her potential for re-entering the workforce, even in such positions, has been impaired by the injuries she suffered in the Accident. Despite her loss of earning capacity, Ms. Tourand is not totally disabled. She has the ability to work, at least part time, in positions that will permit her to have the freedom to move about without having to sit or stand for prolonged periods of time. However, she does not have the same functional capacity that she had prior to the Accident. She is entitled to reasonable compensation for that loss of capacity to earn income in the future. The difficult aspect is the assessment of the quantum of appropriate compensation for this loss.
[144] The defendant submits that the plaintiff has not established a real and substantial possibility that she would have entered the workforce and found work absent the Accident. I disagree. Despite the plaintiff’s limitations, she has demonstrated in the past the ability to find and sustain work within her intellectual capacity, particularly in the area of sales, where she was apparently quite successful in the weight loss business, even though those businesses were overall not financially successful. What she has lost is the same physical capacity that she had before the Accident to engage in occupations suited to her intellectual skills.
[145] The plaintiff’s husband was actively encouraging her to find work prior to the Accident and I believe that there was a real and substantial possibility that she would have worked at some occupation, for some period of time at least, but for the Accident.
[148] The plaintiff is now 48 years old. I think there is a real likelihood that that the plaintiff would have retired before the age of 65. In my view, it is likely that she would have found employment that would have permitted her to spend time providing care and support for her adult children as required, which likely would have meant that she would not have worked full-time on a consistent basis. It is also my view that the kind of jobs(s) that she would have found would likely have paid something in the area of $15 per hour or $30,000 per year.
[149] I am satisfied that the plaintiff has the capacity to work part-time if she accepts the advice that she has received to engage in a directed exercise program and to get and remain as physically fit as is possible. Mr. Carlin suggests that she has the capacity to work as much as half-time. In my view, the part-time work for which Ms. Tourand still has the capacity to perform is likely in about the same pay range as the jobs for which she would have been qualified had she not been in injured in the Accident.
[150] I think it is fair and reasonable to apply a 40% reduction to the potential future loss based on her residual capacity for employment.
[151] Taking all of these factors into account, I assess the plaintiff’s loss of future earning capacity at $220,000.
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