After a car accident injury there is a big difference between a loss that “may” occur in the future and one in which there is a “real possibility”.  Personal injury lawyers have long been trying to put some logic to this distinction and now the following  Court of Appeal case introduces “realistic possibility” (Kim v. Morier, 2014 BCCA 63) as another term to explain the burden of proof for this real but often elusive loss of earnings.
This personal injury appeal involved two car accidents in which the claimant was injured. While she was recovering from the first motor vehicle accident she was hit again, increasing the pain in her lower back and hip. The trial judge awarded, in addition to $55,000.00 for pain and suffering, $10,000.00 to compensate for her own perception that she is now “less valuable as an employee”, despite the evidence being vague and uncertain on this point. The Court of Appeal decision was a three panel unanimous oral decision by Judge Newbury.  In overturning the $10,000.00 award she commented:

[8] In my view, the trial judge here did err in equating the loss of capital asset here with the plaintiff’s own perception. As the cases demonstrate, that is not enough. The plaintiff must show that it is a realistic possibility she will be less able to compete in the marketplace – with economic consequences, not merely psychological ones. In my view as well, the trial judge’s statement made after the award was pronounced, that Ms. Kim “may” be less capable of maintaining her disciplined approach to work also fell short. As we suggested to counsel this morning, the word “may” is essentially speculative and does not equate to a finding of a real possibility.

If the word “may” for a future event is speculative, what makes the terms, “real possibility”, “realistic possibility” or “real and substantial possibility” either less speculative or not speculative at all?  In my view, this distinction is not based in logic but rather necessity.
The law in British Columbia has long recognized that unknown future contingencies make it impossible to calculate lost opportunities and a loss of earning capacity with any precision. Because the occurrence of hypothetical and future events cannot be known, the idea of degrees of possibilities has been created to provide compensation for relevant and realistic positive and negative contingencies.
It is fair to say that speculation cannot be the sole basis for a finding that the happening of a future event is a realistic or a substantial possibility. That conclusion can only be grounded on evidence, and such evidence did not exist in this case. To learn more about personal injury award appeals watch our short video, how judges can reduce personal injury awards:

Posted by personal injury lawyer Mr. Renn A. Holness, B.A. LL.B.

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