In this car accident injury claim(Rosvold v. Dunlop) the British Columbia Court of Appeal confirmed that an injury victim’s optimism and willingness to embark on a new and untried line of endeavour does not prevent an award for loss of earning capacity. This injury case was  relied upon in one of my recent case posts regarding claimants not following medical advice.In this case the injury claimant’s ability to earn a living had been significantly affected by the consequences of the accident. Both his knee and back problems were found to be permanent. The injury claimant  was 51 at the time of trial. He had been self-employed in physically demanding jobs most of his working life. However, the claimant testified that in light of his injury he intended on starting a home-based business constructing pet toys and ornamental garden furniture. The trial judge calculated the injury claimant’s loss of earning capacity as the present value of the difference between his pre-accident annual earning capacity and what he might have earned with his home-based business constructing toys and garden furniture. The Court of Appeal stated that:  

 “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…Because damage awards are made as lump sums, an award for loss of future earning capacity must deal to some extent with the unknowable. The standard of proof to be applied when evaluating hypothetical events that may affect an award is simple probability, not the balance of probabilities” 

The court, on the medical evidence found that the claimant  suffered soft tissue injuries to his back, and a torn cruciate ligament and meniscal tears of his right knee. Two surgeries and a lengthy rehabilitation and conditioning program failed to resolve his knee problem. He can no longer lift heavy weights and cannot work on uneven terrain.  Both his knee and back problems were found to be permanent.
 In the opinion of the Court of Appeal the trial judge’s failure to factor into his analysis the possibilities that the injury claimant’s proposed business might fail, that it might produce less income than he anticipated, and that he might not find any alternate source of income led to an inordinately low award. An award for loss of earning capacity is a matter of judgment, not calculation. 
The injury claimant’s award for loss of earning capacity was increased from $125,000.00 to $300,000.00. Posted by Mr. Renn A. Holness 
Issue: Should car accident lawyers in Vancouver rely on medical prognosis or client optimism?

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