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Future Loss of Earning Capacity

Before my crash I was able to take on many types of employment as jobs became available to me. I was able to work between semesters at school without restriction. Since my crash I am limited to less physical jobs and, therefore, also find it takes longer to find work when I need it. I am unsure what life looks like after university but I know that my crash injuries have impacted my earning potential.

In the recent case of Ilett v. Buckley (2016 BCSC 1407), the courts were left to decide Lost Future Earning Capacity for the then 19 year old plaintiff, who was injured when his bicycle collided with a car in July, 2012.  At the time of the trial Mr. Ilett, now 23 years old, was still suffering with chronic right shoulder pain, which he claimed impaired his function and rendered him incapable of labouring work and sustained typing. An occupational therapist provided evidence to support his claims of limited functioning.

His career path was uncertain at the time of the collision, he worked a variety of jobs and was taking general studies. In the year before the trial, Mr. Illet had declared a major in economics, was taking his heaviest course load, obtaining his best grades, and was working odd jobs. At the time of the trial he was continuing his studies but was uncertain what he would do after his anticipated May, 2016, graduation with a bachelor’s degree.

Madam Justice Gray was left to determine if there was a loss of future earning capacity:

[220]     The threshold question is whether Mr. Ilett has proven a real and substantial possibility of a future event leading to an income loss. Mr. Ilett argued that he has proven that, and Ms. Buckley argued that he has not.

[221]     Ms. Buckley’s position is that Mr. Ilett is not limited in his capacity to engage in desk work, because only the occupational therapist Mr. Towsley suggested that, and none of the doctors did so. As discussed above, I have accepted Mr. Towsley’s evidence on that point.

[222]     Ms. Buckley’s further position is that, even if Mr. Ilett is limited in future work as a labourer, he is still capable of working in an office environment, and will likely earn more in such a job than as a labourer.

[223]     The evidence shows that, as a result of his injuries in the accident, Mr. Ilett is no longer able to work as a labourer, and is not able to comfortably perform work which requires prolonged static positioning of his shoulder, such as work requiring typing and handwriting. Although he has obtained some labouring work since the accident, such as the truck-washing for Mr. Bayley and some of the odd jobs, they have been for short working periods and are sometimes followed by significant pain.

[224]     Mr. Ilett is the kind of person who will work with pain when he needs the money, and who has demonstrated an ability to find work from a variety of sources. It is likely that if he had not been injured, he would have worked for various people at various times in his life depending on the money he wished to earn and the opportunities he found. He is now far more restricted in the work he can reasonably perform, and he likely will be restricted for the rest of his life.

[225]     In addition, the pain he suffers may limit him from working long hours in an office job, and this may limit his opportunities as well.

[226]     As a result, there is a real and substantial possibility that Mr. Ilett will earn less income in the future than he would have earned if he had not been injured in the accident.

In determining how to  best assess his loss, Madam Justice Gray had to consider accelerated entry into the workforce, economist reports from both counsels, and a plaintiff with an uncertain employment future:

[235]     Mr. Ilett’s position is that an award equal to earnings of $10,000 per year until Mr. Ilett reaches the age of 65 appropriately reflects his loss. That reflects a reduction of about 13% in his lifetime income. Using Mr. Wickson’s figures, the present value is about $307,000. Using Mr. Hildebrand’s tables, the figure is about $297,900. I will use the figure of about $300,000.

[236]     Alternatively, Mr. Ilett’s position is that 3.9 years of income, calculated at $297,900, on the basis of Mr. Wickson’s calculation of about $76,400 annually, appropriately reflects his loss.

[237]     Ms. Buckley’s position is that if Mr. Ilett is entitled to anything for lost future earning capacity, it should consist of one year of earnings, on the basis that his education was delayed for that period by his injuries. Mr. McDougall argued on Ms. Buckley’s behalf that Mr. Ilett will be completing his degree after five-and-one-half years, not including the term he took off to work in Chemainus.

[238]     The above analysis of Mr. Ilett’s lost past earning capacity was on the basis that, if the accident had not occurred, he likely would have worked for three years at Shipyards and then returned to UVic in September 2015. If so, and if he completed his degree in a total of four or five years of studies, he would have graduated in spring 2018 or 2019 respectively. In fact, Mr. Ilett is scheduled to graduate two or three years earlier, in spring 2016.

[239]     As a result, it is not appropriate to value Mr. Ilett’s loss on the basis that his post-university career was delayed. In fact, on this analysis, it has been accelerated.

[240]     The most appropriate way to value Mr. Ilett’s loss is using an earnings approach. This is particularly appropriate because he is a man who, if he had not been injured in the accident, might have taken on periodic casual work alongside his main career. After that, it is necessary to consider both positive and negative contingencies.

[241]     It is appropriate to begin with the suggestion that Mr. Ilett will lose about $10,000 per year in income owing to his injuries. He earned $14,000 in 2015 while pursuing full-time studies at UVic. As a result, $10,000 is a reasonable starting figure for what Mr. Ilett would have earned in extra work. This figure also reflects the likelihood that, because of his injuries, he will be unable to work long hours in his career, will be unable to do periodic casual work, and may be unemployed longer between jobs without being able to do alternate work as a labourer.

[242]     It is appropriate to deduct $75,000 on the basis that Mr. Ilett is likely to commence his post-university career two or three years earlier than he would have done if he had not been injured in the accident. That sum reflects the uncertainty over how much earlier he will have finished his courses, and that if he had not been injured, he might have continued to work part-time at Shipyards or at some other job during his studies.

[243]     On those calculations, Mr. Ilett would be entitled to an award of $225,000 for lost future earning capacity. I note that such a sum is roughly equal to almost three years of earnings on the basis of Mr. Wickson’s calculation of about $76,400 annually, and about 3.3 years on the basis of Mr. Hildebrand’s calculation of about $68,000 annually.

[244]     The award cannot be a precise calculation. It is an assessment made after considering the relevant factors.

[245]     Mr. Ilett is entitled to $225,000 for loss of future earning capacity.

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