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LOSS OF FUTURE INCOME: THE REAL AND SUBSTANTIAL POSSIBILITY

 Illustration of Loss of Future Income

When you suffer an injury that prevents you from continuing to work, a large part of your damage award is often comprised of something called your “loss of future income.” Despite the existence of many online calculators, determining future income loss is rarely straightforward and must involve the consideration of numerous contingencies. Graham v Rourke is an important case that tackles these issues and provides guidance in determining what you might be entitled to in the event of a debilitating accident or injury.

The Case: Graham v Rourke Graham is a very unique case in that it involves a plaintiff who was injured once in a car accident then slipped and fell in a way that helped heal her past injuries and was then injured a third time. This series of unlikely events led the court to seek an answer to this question: “Will the plaintiff suffer future losses and, if so, how much?”. Miss. Graham’s series of accidents is an excellent example of why it can sometimes be difficult for a plaintiff to prove what their condition will be in the future. For this reason, the court decided that proving future loss (even on a balance of probabilities) would not be required of the plaintiff. They need only establish a real and substantial risk of future loss to be entitled to compensation. Real and substantial link How exactly does one show a “real and substantial link” between their injury and future loss of income? The Graham decision tells us that the injured party does not need to meet the threshold of a balance of probability (making a judge believe what they are saying is more likely than what the other side is saying). To show a real and substantial link, “…the evidence must be capable of supporting the conclusion that the occurrence of the contingency is a realistic as opposed to a speculative possibility.” What it all means In practical terms, Graham marks a change in the way courts substantiate loss of future earning claims. Though, in theory, it allows for both plaintiff and defendant to put forth their arguments more easily, in practice, it tends to benefit the plaintiff, who no longer bears the onus of satisfying the higher balance of probability threshold.

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