21 Dec Car Accident Injuries Prevent Plaintiff From Opening Daycare

In the case of Niescierowicz v. Brookes, 2020 BCSC 1590, the Plaintiff was a Polish immigrant. Prior to the car accident, she was healthy and happy. She was looking forward to opening a daycare once she became proficient in English.

Due to injuries sustained in the accident, the Plaintiff was unable to open a daycare. The court considered the Plaintiff’s claim for past (referring to pre-trial wage loss) and future wage loss together because the Plaintiff was not working at the time of the accident and had never worked in Canada. As a result, both her claims arose from the career plan she was unable to follow.

Past and future wage loss awards are estimates based on the evidence. The Plaintiff had to show a real and substantial possibility of loss, which required a realistic comparison between her actual circumstances and where she would have been but for the accident.

Becoming proficient in English was the first step in the Plaintiff’s career plan. At the time of the accident, she was enrolled in ESL classes. Once she achieved English proficiency, she intended to enrol in an early childhood education program and get certified. The Plaintiff planned to gain experience working in a daycare setting before opening her own in-home daycare.

ICBC took the position that the Plaintiff would have had no past or future wage loss because her plan to open a daycare was no more than “wishful thinking”.

The judge’s assessment of the evidence was that, while the Plaintiff was optimistic in her estimate of the time it would take to start an in-home daycare, and the steps she had taken were preliminary, there was a real and substantial possibility that she would have accomplished that goal.

The judge found it reasonable to assume that the Plaintiff would have worked as an employee in another daycare for a year. This would have had the benefit of giving her additional experience in the business and of further improving her English language skills. The judge considered it likely that the Plaintiff would have been licenced and ready to open her own in-home daycare after that.

The Plaintiff was 51 at the time of the accident. She testified that she had no plans to retire until age 70.  ICBC did not propose a different retirement age.

The median 2018 salary for a childcare worker was $35,360. Applying the Plaintiff’s proposed marginal tax rate of 22%, the court estimated the Plaintiff’s past wage loss was $189,462.

Turning to loss of future earning capacity, caring for five children per year meant that the Plaintiff would have grossed $54,000 annually for the 13 years until she turned 70.  Using a capital asset approach, the present value was $633,501. After adjusting that amount for positive and negative contingencies, the court awarded the Plaintiff $500,000 for loss of future earning capacity.