Court Discusses Law of Loss of Past Earning Capacity

In Sebaa v. Ricci, the Plaintiff was injured in a head-on collision, and suffered a variety of injuries both physical and psychological in nature. A previous trial dealing only with the issue of liability established liability against the Defendant. The Plaintiff sought damages for pain and suffering, loss of past earning capacity, loss of housekeeping capacity, diminished earning capacity, and the cost of future care. The Court saw merits in both Plaintiff counsel’s and ICBC’S lawyer’s arguments, and would eventually award the Plaintiff $80,000.00 gross for loss of past earning capacity. In so doing, the Court discussed the general legal principles that a court considers with respect to loss of past earning capacity.


[153]     The question of whether a past event occurred is determinable based on the balance of probabilities. But what would have happened in the past but for the injury is not any more knowable than what will happen in the future. Therefore, the likelihoods of both future events and hypothetical past are decided based first on deciding whether there was (for past events) or is (for future events) a real possibility. Then the judge must determine the actual likelihood of its occurring: Smith v. Knudsen, [2004] B.C.J. 2509 (B.C.C.A), at paras. 28 – 29.


[154]     The award for wages lost before trial is for the loss of the value of any work the plaintiff would have done but for the accident. This can be measured in a variety of ways. In some clear cases, actual wages lost can be calculated. In some cases, an opportunity to take a higher paying position has been lost. In some cases, the plaintiff’s former position for whatever reasons no longer available to them irrespective of their injuries, but their injuries have limited the number of job opportunities that formerly would have been within their capacity. The court may have to consider the economy, job availability and any other evidence relevant to measuring what the plaintiff has lost.


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