Proving Loss of Earning Capacity

As a broad rule, any competent evidence is admissible which tends to prove the plaintiff’s loss of earning capacity, such as evidence of the nature of the injury which has interfered with that earning capacity, the duration of the injury, and the value of the earning capacity before and after the injury.

As a starting point, it’s important to establish an accident victim’s earning capacity prior to the accident. This may include aspects such as the person’s age, intelligence, habits, health, occupation, life expectancy, ability, probable increase in skill, and rates of wages paid generally to those following the same vocation.  These factors can also be used in cases where the person has prepared for work in a certain area, but has not yet started working in such area.

Under this view, proof of lost wages is not required, and the amount of such lost wages is not controlling, in determining the amount to be awarded for impairment of earning capacity.

Statistical Information about the Plaintiff in Determining Lost Capacity

Loss or diminution (reduction) of future earning capacity is based on factors such as the plaintiff’s age, life expectancy, health, habits, occupation, talents, skill, experience, training, and industry.

If a question is raised concerning the plaintiff’s ability to earn money in a certain occupation, the court may admit evidence of the plaintiff’s having completed a course enabling the plaintiff to work in that occupation. The plaintiff’s sex is not a consideration, though statistically women of the same education and experience earn less and work fewer years than men.

Although there is strong contrary authority, evidence of the injured person’s past criminal activity has been held inadmissible on the issue of impairment of earning capacity. Other courts have held that evidence of the plaintiff’s past criminal activity is admissible on the issue of impairment of earning capacity, at least under some circumstances. Some states also allow evidence of the plaintiff’s involvement with alcohol or drugs, but there is contrary authority.

Although the specific items of evidence will vary from case to case, the value must be shown with such certainty that the jury will not have to base its award on mere speculation. If, after considering all the evidence, the reviewing court believes that the jury’s verdict was based upon speculation, the court will not uphold the verdict.

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