Personal Injury

Determining income loss in personal injury cases a complex task

By Rob Lamberti, AdvocateDaily.com Contributor

The rise of the gig economy is changing how courts determine awards for future earning capacity in injury cases, says Oakville personal injury lawyer Weston Pollard.

Pollard, partner with Edwards Pollard LLP, says the courts use two basic models to determine future earning capacity: the traditional method, which reviews a plaintiff’s work history when there is a consistent annual income — including bonuses, and their expected career trajectory; and the global and comprehensive approach, which reviews the mercurial incomes of a plaintiff working in the gig economy.

No case is cut-and-dried when it is being contested, but the traditional method is based on reviewing years of tax returns, promotions and work history at a full-time job, he tells AdvocateDaily.com.

The court would most likely apply the global approach to determine future earning capacity by weighing a number of economic factors of a plaintiff who is a gig worker, Pollard says.

“When it comes to the global approach, each case is unique,” he explains. “You have to go down that road when you don’t have the work history or the experience of someone who has had a career of 20 years.

“With the gig economy transforming the way people work, I think we’ll see many more cases where we’re using this global and comprehensive approach to try and sort our way through.”

Pollard cites a recent B.C. Court of Appeal ruling where a plaintiff’s lower court award was accepted because the judge found, “given her work history, the award could not be determined with any mathematical precision.”

The three-judge panel agreed that the plaintiff “had no settled pattern of employment, and the trial judge found no causal link between her injuries and her inability to keep positions in her desired field of employment. There were, therefore, no reliable mathematical anchors on which she could rely with regard to the negative impact of (the plaintiff’s) injuries on her ability to earn income from specific employment positions.

“The trial judge found (the plaintiff) was rendered ‘less capable overall from earning income from all types of employment,’ particularly from positions involving lifting. A fact-intensive, case-specific inquiry was not possible in this case.”

Pollard says, because there is no foundation of multiple years of steady income, the global approach involves looking at what the plaintiff is trained to do, what they want to do, what’s involved in finding a job in their chosen field, and the overall job market.

“All of those things factor in — where you are, availability, average pay, the person’s education and what the evidence has been to date,” he says. “The plaintiff’s evidence will be crucial from the beginning.

“The evidence needs to be consistent and support the person’s desired career path. The plaintiff can’t say the injury has thwarted their plans to become a doctor if the evidence shows they have failed to take any steps to advance down that career path or would otherwise be unqualified to do so due to lack of training or education. It needs to be a realistic career for that plaintiff.”

However, Pollard says, it would be a different scenario with a child whose dream is to be a doctor, but now can’t due to the injury.

“That's a realistic goal for this person,” he says. “We’ve had cases where we’ve looked at their high school transcripts to see if they’re a good student. That’s the comprehensive way of doing this.”

Pollard says he has handled such complex cases in his practice and is ready to deal with the developing changes to the job market.

Step one is to assess the client’s work and education history to determine their training and accomplishments, including activities that demonstrate an interest in a chosen field or profession, he says.

“There will always be unique factors to everyone’s employment and, in those cases, that’s when we look to the expert accounts to flush out certain scenarios,” Pollard says. “We don’t go to trial without an economic loss report.

“When it comes to the comprehensive side, you have to pay attention to what your client is saying and the actions they have taken toward accomplishing those goals. All of that would factor into your theory of what their economic losses are.”

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