What is the test for establishing earnings loss on a balance of probabilities?
British Columbia, Canada
The following excerpt is from Watts v Lindsay, 2019 BCSC 2239 (CanLII):
The plaintiff need not establish earnings loss on a balance of probabilities — since what would have happened between the date of the accident and prior to the trial is essentially hypothetical, as are predictions regarding future losses. As stated in Smith v. Knudsen, 2004 BCCA 613 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 hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation: Athey at para. 27; and Morlan v. Barrett, 2012 BCCA 66 at para. 38.
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