What is the test for determining that a plaintiff is less capable of earning income in the future?
British Columbia, Canada
The following excerpt is from Rochon v. Mott, 2009 BCSC 247 (CanLII):
Nevertheless, plaintiff’s counsel submits that as a result of the motor vehicle accident of December 20, 2005, the plaintiff is now less capable of earning income in the future. An award for compensation for loss of earning capacity is predicated on the loss of a capital asset. The standard of proof to be applied when evaluating future events that may affect an award is simple probability rather than the usual test of balance of probabilities (Rosvold v. Dunlop, 2001 BCCA 1). Thus, in assessing the potential for future loss I must consider “. . . possibilities and probabilities, chances, opportunities, and risks . . . so long as they are a real and substantial possibility and not mere speculation” (Rosvold v. Dunlop, supra).
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