Does the phrase “entitled to ...” apply to a plaintiff who has returned to her previous employment and previous earnings?
British Columbia, Canada
The following excerpt is from Sobolik v. Waters, 2010 BCCA 523 (CanLII):
The trial judge here erred in her repeated use of the “entitled to ...” phrase. It was only ever applicable to those cases where, notwithstanding that the plaintiff had returned to his/her previous employment, and previous earnings, he or she had a continuing disability. Perrin v. Lalari clarified that ongoing disability was compensable if there was a substantial possibility of a future loss of income despite the plaintiff having returned to his or her usual employment. Some of the earlier cases had erroneously suggested that such a plaintiff would be entitled to damages for lost earning capacity regardless of whether there was a substantial possibility of actually suffering that loss. In the case at bar the trial judge erred by inappropriately using the “entitled to ...” language in her instructions to the jury and also by using it out of context on the facts of this case.
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