What is the proper calculation for lost or diminished earning capacity?

British Columbia, Canada


The following excerpt is from Zigawe v. Rance, 2009 BCSC 1816 (CanLII):

The proper approach to determining lost or diminished earning capacity is set out in Rosvold v. Dunlop, 2001 BCCA 1, at para. 8 as follows: The most basic of these principles is that the plaintiff is entitled to be put into the position he would have been in but for the accident so far as money can do that. An award for loss of earning capacity is based on the recognition that a plaintiff's capacity to earn income is an asset which has been taken away [citations omitted]. Where a plaintiff's permanent injury limits him in his capacity to perform certain activities and consequently impairs his income earning capacity, he is entitled to compensation. What is being compensated is not lost projected future earnings but the loss or impairment of earning capacity as a capital asset. In some cases projections from past earnings may be a useful factor to consider in valuing the loss but past earnings are not the only factor to consider.

The plaintiff is required to establish an impairment of her earning capacity as a capital asset. Here, I cannot find on the evidence that the plaintiff is likely to be less capable of earning income in her settled career as a retail merchandiser because of her left wrist condition. She still works forty to fifty hours a week, depending on contracts. There is insufficient evidence here of a "substantial possibility of loss of income earning capacity" to support this claim. See Bedwell v. McGill, 2008 BCCA 6, at para. 53:

In addition, it was necessary for the appellant to have proven a substantial possibility of a future event leading to an income loss (see Steward v. Berezan, 2007 BCCA 150, 64 B.C.L.R. (4th) 152 at para. 17). Based on the trial judge's finding with respect to the extent of her ongoing injuries caused by the accident and the fall, and the lack of evidence that such injuries could lead to a future income loss, it follows that she did not prove such a substantial possibility.

Other Questions


In the context of diminished earning capacity, what is the proper analysis of past and future diminished earnings capacity? (British Columbia, Canada)
In assessing future loss of earning capacity for loss of past and future earning capacity, what is the test for a loss of future earnings allowance? (British Columbia, Canada)
What analysis is proper for the purposes of calculating diminished earning capacity? (British Columbia, Canada)
How is a plaintiff's capacity to earn income calculated when they have lost their capacity to work? (British Columbia, Canada)
What is the impact of loss of future earning capacity on future earnings capacity? (British Columbia, Canada)
What is the test for calculating the value of a plaintiff's capacity to earn under a loss of income calculation? (British Columbia, Canada)
In a loss of future earning capacity case, is a plaintiff entitled to an award for loss of earning capacity? (British Columbia, Canada)
Is there a loss of earning capacity when there is no reduction in income earning capacity? (British Columbia, Canada)
How is the calculation of loss of future earning capacity calculated? (British Columbia, Canada)
Is there any case law that supports the argument that past loss of earning capacity affects future earning capacity? (British Columbia, Canada)
X



Alexi white


"The most advanced legal research software ever built."

Trusted by top litigators from across North America.