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Evidence Needed to Prove Loss of Earning Capacity

Loss of personal injury appeal

Helping understand loss of earning capacity claims in BC in today’s personal injury case the claimant was a passenger when a row of cars stopped at a red traffic light.  The light turned green and the defendant lifted his foot from the brake of his car, and his car began to roll forward. He did not see the vehicle in front stop. When he looked again and saw the vehicle ahead was stopped, he braked, but it was too late to avoid rolling into it. The plaintiff was jolted when the vehicle was hit.

 She appeals her personal injury trial award of  $40,000 for pain and suffering, $1,625 in special damages, and no award for loss of earning capacity. She argued that the trial judge made errors of fact and failed to consider important evidence in assessing her personal injury claim and finding that there was no future loss of income.
The appeal was dismissed as the trial judge’s reasons showed that she took into account all of the evidence in drawing inferences and making findings of fact. She did not require expert evidence in making limited observations about the dance videos and the claimant failed to prove that her injuries would limit her ability to work.( Leong v. Besic, 2016 BCCA 485)

The trial judge gave thorough reasons on the issue of loss of earning capacity and the evidence did not “support a conclusion that there is a real and substantial possibility that the plaintiff is less capable overall from earning income in all kinds of employment, unable to work in jobs that were previously open to her, less marketable to employers, and less valuable as an employee due to her injuries”.

The Court of Appeal quoted the words of Skolrood J. in Nair at para. 97:

[I]n order to establish the requisite real and substantial possibility of a diminishment in earning capacity, there must be an evidentiary base that goes beyond mere speculation on the part of the plaintiff. There is no such evidence in this case, and accordingly, I find that Ms. Nair is not entitled to damages under this head.

No new law was established in this case. Learn more about evidence for making a loss of earning capacity claim by watching our short video:

Tags: loss of earning capacity, Pain and Suffering, Rules of Evidence

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