How does the court know if I would have been able to find work in the past if not for my injuries? How do family and other competing factors influence my claim? What other factors in my life will the court look at to determine if I would have worked?
In the November 25, 2015 judgment of Touran v. Charette 2015 BCSC 2165 (http://www.courts.gov.bc.ca/jdb-txt/sc/15/21/2015BCSC2165.htm) Mr. Justice Joyce had to determine if there was a real and substantial possibility that the plaintiff would have worked; had the crash not occurred. The plaintiff had very little pre – crash work history, a son with mental health and drug problems, another son who was injured and she cared for at her home and a daughter, a single parent, who lived with her from time to time. The defendant argued that the plaintiff’s busy schedule, coupled with her lack of education and job skills make it unlikely that she would have entered the workforce, regardless of the crash. Mr. Justice Joyce considered the circumstances of the plaintiff’s family as a whole, and made an award for past loss of income earning capacity at $50,000.00.
[136] The plaintiff has limited education and has acquired few marketable skills in the kind of work that she did engage in prior to the motor vehicle Accident. It would not have been easy for her, with these limitations and at her age, to compete in the job market for the kinds of positions that would have been available.
[137] On the other hand, her husband was pressing her to find work before the Accident, in order to contribute to the family income. I believe that there is a real and substantial possibility that the plaintiff would have found work; although I also think it is likely that the work that she would have found would have been at the lower end of the range suggested by Mr. Carlin. I am also of the view that there is a very good chance that the plaintiff would not have been able to maintain full-time employment given her dedication to her children and the demands that they placed on her time. Employment for the plaintiff was something that would have helped ease the financial burden on the family, but was not a necessity for the plaintiff. She and her husband were doing alright with his income from the computer store. In my assessment of the plaintiff, she would put her children and grandchild, and their needs, ahead of an increased family income.
[138] Taking into account these negative contingencies and taking into account, as well, my assessment that the plaintiff has had the capacity to look for and undertake some part-time employment of a sedentary nature but has not done so, I assess the plaintiff’s loss earning capacity as a result of the motor vehicle Accident at $50,000.
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