What is the test used to determine post-accident, pre-trial losses?
British Columbia, Canada
The following excerpt is from Fontaine v. Van Kampen, 2013 BCSC 1702 (CanLII):
... the determination of a plaintiff’s prospective post-accident, pre-trial losses can involve considering many of the same contingencies as govern the assessment of a loss of future earning capacity. ... As stated by Rowles J.A. 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.”
The law has long recognized that unknown contingencies and uncertain factors make it impossible to calculate lost opportunities and a loss of earning capacity with any precision: Erickson v. Sibble, 2012 BCSC 1880 at para. 271. It is because the occurrence of hypothetical and future events is unknown that allowances must be made for relevant and realistic positive and negative contingencies.
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