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Lower Burden of Proof for Future Events in Personal Injury Cases


This case provides an important restatement of the law of evidence regarding the burden of proof in personal injury cases:

[110]   The burden of proof of actual past events is a balance of probabilities. An assessment of loss of both past and future earning capacity involves consideration of hypothetical events. The plaintiff is not required to prove these hypothetical events on a balance of probabilities. The future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation: Athey at para. 27; Morlan v. Barrett, 2012 BCCA 66 at para. 38.( Bains v. Gret’s Projects Inc.,2017 BCSC 1530)

How much an ICBC personal injury case is worth can be largely dependent on the evidence the claimant is able to provide to the court. In this case the at fault driver was driving on the wrong side of the road toward oncoming traffic and swerved her vehicle into the claimant’s vehicle to avoid a head-on collision.
The claimant suffered soft tissue injuries to her neck, both shoulders, mid back, low back right hip and thigh, right knee, right leg, right ribs, headaches, anxiety, interrupted sleep, and chronic pain. The two main issues were (1) the degree to which the claimant’s functional capacity has been permanently reduced; and (2) whether there was a real and substantial possibility that the claimant would have become a Canada Border Services agent or a police officer but for the car accident.
Generally a claim for loss of future earning capacity raises two key questions: 1) has the claimant’s earning capacity been impaired by his or her injuries; and, if so, 2) what compensation should be awarded for the resulting financial harm that will accrue over time?
In this case the judge was convinced there was a reduction of the claimants capacity and that she had suffered significant pain and suffering as a result of the motor vehicle accident soft tissue injuries. Her case was valued at the following amounts:

Past Loss of Earnings- $25,000.00

Future Loss of Earnings- $425,000.00

Cost of Future Care- $48,105.00

Out of pocket expenses- $4,367.60

TOTAL:  $502,472.60

Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

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

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