16 Sep Can You Claim For Future Loss of Earning Capacity If Your Income Increases After Your Accident?

In personal injury cases, an injury often results in a reduced capacity to earn income in the future.  But what happens if you have to change jobs as a result of the accident… and you end up earning more money?

In the case of Mitchell v. Martin, 2016 BCSC 1544, the Plaintiff was riding his motorcycle when the Defendant’s vehicle emerged from an alley way and cut him off. The Plaintiff swerved to avoid the vehicle and was ejected from his motorcycle.

The Plaintiff sustained injuries to his right shoulder, neck and back, as well as bruising and road rash. Most of his injuries resolved after a few months but the injury to his right shoulder persisted and required surgery. The Plaintiff’s shoulder recovered well after the surgery but still caused him pain when he attempted to return to work as an experienced tree faller.

After the accident, the Plaintiff was able to move into a supervisory position that paid more per day than he had previously earned as a tree faller.  He was also able to establish a partnership with a colleague which led to the creation of a successful business venture.  At the time of the trial, the partnership had received a number of lucrative contracts and employed some 45 contractors. The Plaintiff was making more money by being in a purely supervisory role than he had as a laborer.

The main issue in this case was whether the Plaintiff could receive damages for a future loss of earning capacity if he was earning more money than he had prior to the accident.  The Court decided that he could.

In awarding the Plaintiff $45,000 for a future loss of earning capacity, the Court took the “capital asset approach”.  This approach essentially sees the person’s physical capacity as an asset that has been reduced in value due to permanent injuries.  If the Plaintiff’s business ever failed he would be forced to go back to tree falling, and the restricted use of his right shoulder would make him less marketable to potential future employers.

This case highlights that a Plaintiff need not be financially worse off after an accident in order to claim damages. This is especially true in cases where the Plaintiff has made their living through physical labour because a serious and permanent injury would make them less competitively employable.  It is recognized in law that a Plaintiff in these circumstances can receive damages for a loss of physical function while not necessarily losing income.

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