What factors to consider when determining whether a plaintiff has been rendered less capable overall from earning income from all types of employment?
British Columbia, Canada
The following excerpt is from Holman v Leung, 2021 BCSC 1168 (CanLII):
Where the capital asset approach is to be used, factors to be considered were set out by Finch J. (as he then was) in Brown v. Golaiy (1985), 1985 CanLII 149 (BC SC), 26 B.C.L.R. (3d) 353 (S.C.) at para. 8; the court should consider whether: 1. The plaintiff has been rendered less capable overall from earning income from all types of employment; 2. The plaintiff is less marketable or attractive as an employee to potential employers; 3. The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and 4. The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.
The standard of proof in relation to future events is simple probability, not the balance of probabilities, with hypothetical events to be given weight according to their relative likelihood. Since the course of future events is unknown, allowance must be made for the contingency that the assumptions on which the award is based may prove to be wrong: Reilly v. Lynn, 2003 BCCA 49 at para. 101.
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