Let us presume that a victim suffers an injury to her wrist in a slip and fall accident. The resulting fracture is severe and recovery from the injury takes about a year. During the year that it took to recover, the victim was unable to work as effectively in her job. Nevertheless she forced herself to go to work as she was self employed and staying home was not an option. Consequently, her income dropped by 30% The drop in income was calculated by comparing her immediate pre-injury annual income with the immediate post accident annual income. Other evidence demonstrates that she was unable to work as much nor as effectively due to the injury.
In the second year, post accident, income levels returned to normal levels as compared to pre-accident earnings and based on income earned, it appears that the victim was back to “normal”. Does this mean that the ability to recover damages for loss of future income is concluded? The argument against recovery of additional damages is that there is a full recovery from the injury, income levels have returned to normal, and any future losses are speculative in nature.
Why then does the victim still want to pursue future income loss after a full recovery? The answer lies in the fact that full recovery from a severe injury is unlikely. Even if recovery is such that for a period of time there is little or no apparent impact of the injury (i.e. the victim seems fine), the reality of most serious injuries is that there is a risk of reoccurrence of impairment from the injury at a future date. A prime and common example is the occurrence of arthritis some time after the healing of broken bones.
The risk of reoccurrence of impairment from the injury and the loss of income that it may cause is a matter that must be compensated when resolving a claim.
The legal test in determining whether there is a compensable prospective future income loss (in the circumstances described in this post) is whether there is a real and substantial risk that future pecuniary loss will occur. The argument for loss of future income loss will not be successful if the exercise is purely speculative.
Given the legal test of real and substantial risk, it is imperative that in preparing a claim that time is taken to obtain expert evidence establishing what may arise in the future as a result of the injury a well as the likelihood of that happening. To successfully claim future income loss (as discussed herein) it is critically important to consider the elements of the real and substantial risk test and to marshal evidence that squarely addresses the evidentiary burden in proving that the injury will have symptoms that will likely materialize and those symptoms will cause an impairment that causes damage (i.e. income loss). The goal in presenting this evidence is to assist the Court in assessing the severity and likelihood of the risks that may materialize from the injury in the future.
Plant Quinn Thiele Mineault Grodzki PC Mineault Grodzki PC considers the availability of damages for this kind of loss in each case. Injury victims should not be deprived of these types of damages just because it seems like there has been a full recovery from the injury. For this reason it is important to work closely with an injury victim’s doctor(s) and to seek expert medical opinion with respect to not only what has happened, but indeed what may happen in the future. By: Michael K.E. Thiele.