The issue of wage losses is complicated and becomes more complicated when dealing with self-employed individuals with variable incomes. In this case, a 42 year old woman suffered right ankle and whiplash like injuries to her neck/upper back after her car was struck by another vehicle that was exiting a driveway. This plaintiff was left with ongoing and chronic pain. Additionally, the plaintiff had gone on to develop symptoms of thoracic outlet syndrome and psychological injury, including depression.
The plaintiff in this case was not given an award for past wage losses, but was given an award of $80,000 for loss of future earning capacity. Once again, the capital asset approach was used. The capital asset approach provided the plaintiff with an award despite the fact that her future wage losses were not capable of being quantified. The plaintiff, in this case, ran an Italian restaurant with her family. The courts acknowledged that despite the fact that she was unable to prove that she had suffered any past wage losses, it was probably that she would suffer from an impairment that would affect her ability to earn income going forward.
This case once again illustrates the difference between the two ways in which future losses can be assessed: the earnings approach and the capital asset approach. The earnings approach relies on actual calculations of wage loss and requires the use of mathematical formulas and relatively certain quantification of wages. The capital asset approach is a much looser approach, which relies on hypothetical and more general guess work. Once again, merely because there is uncertainty about future wages, that doesn’t mean you can’t be awarded fair compensation for them.