Does the loss of earning capacity constitute a present or prospective loss? Explain your

Question

answer with reference to the prospective and present legs of prospective damage. Refer
to case law in support of your answer

Answer 1

The loss of earning capacity can be considered both a present and prospective loss, depending on the circumstances of the case.

In terms of the present leg of prospective damages, the loss of earning capacity can be seen as a current loss that the plaintiff is experiencing due to their injury. This loss may already be affecting their ability to work and earn income, and therefore can be seen as a present loss that the plaintiff is experiencing.

On the other hand, the loss of earning capacity can also be considered a prospective loss in that it is a loss that is likely to continue into the future. This aspect of the loss looks at how the injury will impact the plaintiff's ability to earn income in the future, taking into account factors such as the nature and severity of the injury, the plaintiff's age, occupation, and earning history.

One case that supports the idea of loss of earning capacity as both a present and prospective loss is Andrews v. Grand & Toy Alberta Ltd., [1978] 2 SCR 229. In this case, the Supreme Court of Canada held that damages for loss of earning capacity should be awarded based on both the past and future losses that the plaintiff has suffered or will suffer as a result of their injury. This decision recognized that the loss of earning capacity can impact the plaintiff both in the present and into the future.

In conclusion, the loss of earning capacity can be considered both a present and prospective loss, as it may be impacting the plaintiff's ability to earn income currently and is likely to continue to do so in the future.