In this car accident personal injury case the claim for past loss of earning capacity was dismissed as speculative. Even though the trial judge used the wrong and higher standard of balance of probability, the Court of Appeal still dismissed the appeal. (Rousta v. MacKay,2018 BCCA 29).
The ICBC claimant was driving on Taylor Way in West Vancouver after shopping at the Park Royal shopping mall. She came to a stop behind vehicles that had also stopped at the intersection of Taylor Way and Inglewood Avenue when she was rear ended. The trial judge awarded her a total of $313,678.77, $110,000 for pain and suffering but nothing for past loss of earning capacity. She appealed.
In reaffirming the test for past loss of earning capacity the Court of Appeal stated:
 … the standard for the proof for hypothetical past events, like hypothetical future events, is the lesser “real and substantial possibility” threshold. This standard can be contrasted with the standard of proof for past events, which is on the ordinary civil balance of probabilities standard, and alleged events which do not rise to the “real and substantial possibility” standard because they constitute mere speculation.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.