Loss of earning capacity

Reasons for judgment were released today in the case of Woelders v. Gaudette.  In the decision Madam Justice Balance provides a great explanation for the way in which loss of earning capacity following injury in an event such as a car accident occurs.  She describes the process of assessment as follows:

[126]  In advancing a claim for the loss of income-earning capacity, the plaintiff must prove a real and substantial possibility of such loss, as opposed to a theoretical one.  In other words, the award cannot be based on speculation…Where a real and substantial possibility of loss has been established, compensation is awarded based on an estimation of the chance that the event leading to such loss will occur…As recently observed by the Court of Appeal in Kim v. Morier, 2014 BCCA 63 at para. 7, the onus on the plaintiff is not a heavy one but must nonetheless be met in order to justify a pecuniary award.

[127]  Quantification of loss is an assessment meant to reflect the non-speculative positive and negative contingencies at play in the particular case.  As quantification is not a strict mathematical calculation, there is no particular formula or methodology to be employed…

[128]  Evidence of ongoing pain may be sufficient to ground a substantial possibility that a plaintiff’s pain will adversely affect his or her future ability to work.  This may hold true even where, at the time of trial, the plaintiff has not missed work due to the injury.

This decision provides a great example of the analysis that the court undergoes in assessing a claim for loss of earning capacity.  The purpose of any award of damages in a personal injury claim is to put the injured plaintiff back in the position they would have been in if they had not been injured.  When it comes to future events, the court looks only at simple probability rather than the balance of probabilities.  The question that is addressed then is whether there is a substantial possibility that the plaintiff’s injuries will in the future lead to a loss of income.  If that question is answered positively then the court will go on to assess the value of the loss.