The family breadwinner is injured and cannot work because of injuries caused in accident– what happens?
An accident happens – be it a slip and fall, a car accident, a motorcycle accident or whatever kind of accident – and the breadwinner of the family is critically injured and cannot work. Cash flow stops coming in every two weeks. Money tightens. There is a family to support. There are kids to feed, car leases and a mortgage to pay. What do you do?
This is the first question that we are often asked by family members of injured victims. Loss of income is a grave concern. We are bread to work, to contribute to society, to make money and to support ourselves and our family. When the cycle is stopped – anxiety often sets into the surviving or non-injured family members.
The first and most important thing to do is to obviously turn to any disability policies that may be available. Contact your loved one’s HR department and get the appropriate forms filled out and submitted as soon as possible. Second – look for any top ups, such as income replacement benefits or a private disability policy that stacks. If you or your loved one is injured in a car accident then he/she has the right to loss of income through your own insurer regardless of fault (There are some criteria such as your loved one must be at least 16 years old, was self-employed or employed at the time of the accident and must suffer a substantial inability to perform the essential tasks of that employment, was employed for at least 26 weeks during the 52 weeks before the accident – you can read more here) The amount you can receive is normally 70% of you or your loved one’s gross weekly income, up to $400.00 unless optional benefits were purchased.
How is loss of income dealt with during your lawsuit against an at-fault driver?
Your or your loved one’s inability to work and make money is normally addressed within a section or head of “damages” called pecuniary losses. Pecuniary means relating to, or consisting of money and pecuniary damages are losses which can be quantified in monetary terms. Our Supreme Court of Canada said this:
When we represent an injured victim, how do we recover income loss, or wage loss for that injured person and their family?
There are two things we start with – one is called pre-trial or past income loss and the other is called future income loss. The trial or settlement date is the divider between your past and future income loss. Future losses need not correspond with pre-trial losses. The two heads of damages measure different kinds of loss and are based on different considerations. The assessment of future loss of earning capacity relies on predictions of the future which might or might not bear any relation to those disabilities that led to past loss of earnings. This was explained in the case of Cipriano v. Cipriano (1996), 22 B.C.L.R. (3d) 148 when a plaintiff’s fibromyalgia did not causing any pre-trial loss of wages but threatened a plaintiff’s future ability to work.
Future Income Loss because of injures – how is it figured out?
Depending on the jurisdiction future income loss can be further subdivided or sub-categorized into claims for “loss of competitive advantage”, “future diminution of income”, “future income loss”, “loss of earning capacity” “loss of economic opportunity” (you can be entitled to damages for a related loss of opportunity, such as a delay in graduating from university) or “loss of earnings”. All of theses describe ways in which to calculate the amount needed to restore the injured party to his or her position had the injuries not occurred.
What are some basic rules in formulating a claim for you or your loved one’s future income loss?
The first is understanding what you need to prove in a lawsuit. In a criminal case a prosecutor to establish a case beyond a reasonable doubt. In a civil case or a lawsuit you need to prove your case on a balance of probabilities i.e. “more likely than not.” But there are exceptions to this in certain circumstances. When proving income loss one only needs to prove that there is a reasonable, as distinct from speculative, possibility of such a loss. Even if no basis has been presented for computing loss of future earning capacity, an award must be calculated which is considered fair and reasonable to an injured party.
When estimating income following an injury we must look at things such as the post-injury career path of the person, the selection of the appropriate earning data to “forecast” a post-injury career path, the assessment of appropriate positive and negative labour market contingencies (i.e. the likelihood of promotion, obtaining more remunerative work, unemployment, illness, early retirement and on-the-job accidents) the retirement age and the impact of the injury on earnings and labour force statistics. It is also important to know that in proving the loss you are not required to cover every possible occupation that might be available: you need only present occupations for which you are reasonably suited by background, age and experience and for which you might reasonably be retrained.
Once these factors are taken into an account a proper loss of income claim can be formulated to support your claim.
What about specific or special income loss situations?
Each case is obviously different and there is an enormous body of law that deals with many different specific situations. For example an injured plaintiff is entitled to damages for loss of earning capacity whether that capacity involves wages or unconventional earnings – such as doing the work of a bartender or exotic dancer.
What about an injured child? The process of quantifying a child’s lost earning capacity is quite speculative. Statistical evidence of an adult’s average earnings( like a parent) may be used to assess a child’s lost earning capacity. The court may infer from the plaintiff child’s family background what level of education he or she would have attained apart from the injury. If a plaintiff is a bit older, such as a teenager or student, then he or she must must establish a reasonable possibility of pursuing a particular career path if damages are to be assessed on that basis. Where the court considers that such evidence is not sufficient, only nominal damages will be awarded. One can’t create a fictional or unattainable opportunity in an effort to build a claim.
As you can see there are many variables in assessing how to replace an injured one’s lost income. If you or a loved one has been injured then you should consult an Oakville lawyer to discuss your particular situation.
We are injury and employment lawyers in Oakville Ontario and services from Toronto to the Niagara areas.
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