What is the test for a plaintiff to claim damages for past and future loss of income capacity?

Claims for both past and future loss of income capacity are subject to the same legal test. The plaintiff must demonstrate that the injuries suffered in the accident and the resulting symptoms have impaired his ability to earn income, and that there is a real and substantial possibility his diminished earning capacity has resulted or will result in a pecuniary loss. The onus is not a heavy one but must be met in order to justify a pecuniary award: see Perren v. Lalari, 2010 BCCA 140, at paras. 21, 32 and 33.

With reference to past loss of earning capacity, Rowles J.A. in Smith v. Knudsen, 2004 BCCA 613, put the matter this way (at para. 29): . . . What would have happened in the past but for the injury is no more “knowable” than what will happen in the future and therefore it is appropriate to assess the likelihood of hypothetical and future events rather than applying the balance of probabilities test that is applied with respect to past actual events.

A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation: see Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, at para. 27. The plaintiff’s loss is assessed on the basis of the difference between the plaintiff’s original position just before occurrence of the negligent act or omission, and the injured position after and as a result of such act or omission: Athey, at paras. 34-35. Where a plaintiff establishes a real and substantial possibility of a hypothetical event, the event must be given weight according to its relative likelihood and compensation must be awarded on an estimation of the chance that the event will occur: see Steward v. Berezan, 2007 BCCA 150, at para. 17.