A Checklist for Future Loss of Earning Capacity Claims

The proper valuation of the loss of future income or earnings is critical to understanding how much an injury case is worth. When making a personal injury claim for future wage loss and loss of earning capacity in British Columbia the following legal principles are relevant:

(a) General Duty to Compensate the Claimant

To the extent possible, a claimant should be put in the position he/she would have been in, but for the injuries caused by the defendant’s negligence;

(b) Before and After Comparisons of Income

The central task of the Court is to compare the likely future of the claimant’s working life if the Accident had not occurred with the plaintiff’s likely future working life after the Accident;

(c) Not Only a Mathematical Calculation

The assessment of loss must be based on the evidence, but requires an exercise of judgment and is not a mathematical calculation;

(d) Choosing the Appropriate Approach to the Assessment

The two possible approaches to assessment of loss of future earning capacity are the “earnings approach” and the “capital asset approach”;

(e) The Real and Substantial Possibility Test

Under either approach, the claimant must prove that there is a “real and substantial possibility” of various future events leading to an income loss;

(f) Using Factual Mathematical Anchors

The earnings approach will be more appropriate when the loss is more easily measurable. Furthermore, while assessing an award for future loss of income is not a purely mathematical exercise, the Court should endeavor to use factual mathematical anchors as a starting foundation to quantify such loss; see Jurczak v. Mauro, 2013 BCCA 507 at paras. 36-37.

(g) Assessing Overall Fairness and Reasonableness

When relying on an “earnings approach”, the Court must nevertheless always consider the overall fairness and reasonableness of the award, taking into account all of the evidence.

( taken from BC Supreme Court Judge Judge Voith in Beaton v. Perkes, 2016 BCSC 2276 see para 61)

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