I’m a stay-at-home parent, remaining with my children while my husband works. Can I still be awarded for loss of capacity? What will the court base my award on?
The recent case Williamson v Rutter (2016 BCSC 381) discussed the uncertain nature of a stay-at-home parent’s return to work. The plaintiff in this case, Ms. Williamson, was injured in a crash while 8 months pregnant with her second child. She suffered an lower back injury, headaches, and soft tissue injuries to her neck and right shoulder. She wasn’t working outside the home at the time, having quit her job a few years previously to have her first child. At the time of trial, Ms. Williamson’s second child was due to start kindergarten in about eight months – at which point Ms. Williamson testified she had intended on looking for part-time work. She testified that she would begin to work full time when her first child was old enough to be at home by herself, but did not clarify what age that might be. She said she would likely retire at age 60 – basing this on her mother’s retirement plans, which seemed “pretty fair.”
Ms. Williamson had a grade 11 education and had not solidified a career path prior to taking time away from the work force to have children. She had worked for a few years in various part-time positions in clothing stores earning minimum or close to minimum wage. Her plan for her return to work was not solidified – she had thought of returning to a position in clothing sales, or perhaps seeking out secretarial work. She testified that she could not return to her former job as a sales clerk because she could no longer wear the required form-fitting clothes – as the undergarments required for those kinds of outfits caused pain in her shoulders.
Despite the uncertain nature of the evidence, Justice Loo awarded the plaintiff $20,000.00 for loss of capacity:
[51] Ms. Williamson may not be able to perform her former job of merchandiser but there is nothing in the evidence – other than argument – that she is unable to work in any meaningful capacity.
[52] There are other contingencies to consider. Ms. Williamson only intended to pursue part-time employment for a number of years, and as she said, most positions in women’s apparel are part-time positions, and few are full-time positions. Non-union retail positions are subject to the vagaries of lay-offs and unemployment. Ms. Williamson’s employment with Au Cotton lasted less than a year before the store closed. She agreed on cross-examination that she could work selling lottery tickets. However, I find that there are some jobs that are closed to her because of her physical limitation and her education. The difficulty is knowing what jobs would have been open to her, and that she would have accepted, but for the accident. It is most likely in retail sales selling women’s clothes, or other sales positions, earning minimum or close to minimum wages. There will be jobs open to her, but she may have to decline those that exceed her functional limitations. The jobs will also have to meet her family demands. She suggests that she will work to age 60 like her mother, but her mother is only doing so because of her federal pension.
[53] The defendants argue that Ms. Williamson’s biggest hurdle will not be related to her injuries but to finding employment in the next few years that meet her requirements of being with her children until they are old enough to look after themselves. I agree. However, I also conclude that there is a real possibility that Ms. Williamson will suffer a loss of future income from her permanent partial disability, but it is not that great. Doing the best I can, I assess her income loss at $20,000. The assessment would be the same whether on the basis of the income approach or capital loss approach.
0 Comments