Blue toned desaturated picture of data with numbers printout with a scientific calculator and pens.

Blue toned desaturated picture of data with numbers printout with a scientific calculator and pens.

Hergott: Future income loss from an injury

Lawyer Paul Hergott takes a look at losses from an injury

Losses from an injury can extend many years into the future. It is always a challenge to gaze into the crystal ball and predict what those losses will be. Another challenge, the subject of this column, is calculating them.

You cannot just add them up. Because of inflation, a dollar paid today is worth something more than a dollar paid in the future.

Paying $1,000.00 today would overcompensate you for a $1,000.00 loss anticipated to occur 20 years from now.

Future losses must be discounted to account for inflation.

But at what interest rate? And how do you calculate it??

I’m a bit of a math lover, so this kind of thing warms my soul. Before we get to the fun calculations, I will share the law.

There is a piece of legislation called the Law and Equity Act, R.S.B.C. 1996, chapter 253. Section 56 requires the application of prescribed discount (interest) rates when calculating the present value of future losses in a lawsuit.

The prescribed rates are set out in the Law and Equity Regulation, BC Reg 352/81 .

Future income losses (and loss of dependency in a wrongful death claim) must be discounted at 1.5 per cent per year. All other future losses must be discounted at 2 per cent per year.

Those rates must be compounded annually, complicating the calculation.

Courts often have the benefit of economists to perform the calculations. But a recent court decision, MacGregor v. Bergen, 2019 BCSC 315 , has reaffirmed previous decisions holding that an economist is not required.

The judge in that case used a table of calculations provided within a copyright protected publication called Civil Jury Instructions.

The table itself is copyright protected. But the calculations are not.

I am going to walk you through the simplest calculation: the present value of a loss anticipated to occur one year from now.

Let’s assume it is income loss in the amount of $1,000.00.

Future income loss requires application of the 1.5 per cent discount rate.

What number, when you add the required annual rate of 1.5 per cent, will give you $1,000.00 at the end of the year?

Algebra states that question as follows: $NUMBER x (1 + 1.5%) = $1,000.00. The result is $985.22.

In other words, payment of $985.22 today would compensate you for an income loss of $1,000.00, one year from now, applying the required 1.5 per cent discount rate.

Did that make your brain hurt?

What if that same loss of $1,000.00 was to continue, year after year, for 20 years? That requires 20 calculations, each with a slightly different formula.

If you crunch the numbers, correctly, you will finally arrive at $17,168.64.

The table in the Civil Jury Instructions publication allows you to come to these same answers without any Algebra. It has a table with “multipliers” to calculate the present value of a consistent, annual, loss. You can pick a multiplier for one, two, three, four, all the way up to 50 years. You simply multiply your annual loss by the applicable multiplier.

But the table works only for consistent, annual losses. It does not accommodate increasing income losses that might occur as you become less and less able to tolerate your symptoms.

Nor does it accommodate fluctuating future care needs.

And of course using the table at all requires getting your hands on the publication.

The same basic table can be generated with the magic of an Excel spreadsheet. And if you’re a geek like me, you can create a much more robust tool, programmed to automatically calculate the present value of any scenario of future losses.

But if math doesn’t warm your heart like it does mine and you would like access to the spreadsheet tool I have created to calculate the present value of your future losses, just give me a call.

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