When seeking damages for injuries caused by a defendant’s negligence, what is required?

Nguyen v Zeng, 2025 BCSC 1903, a recent trial decision in which I was defence counsel along with Kayla Wrolson, demonstrates the importance of the evidence required to be adduced to support claims for past and future income earning capacity and for cost of future care. This was a personal injury case related to injuries that the 33-year-old plaintiff suffered in two motor vehicle accidents in 2015 and 2017. The plaintiff sought approximately $3.4 million in damages. Her award was nearly $84,000.

In dismissing the past and future income earning capacity claims, the trial judge held that the plaintiff failed to meet the “real and substantial possibility” threshold required to prove such claims. While the plaintiff worked as a program manager in the hospital system and led some evidence that some peers had advanced more quickly in their careers than she did, the trial judge held that this evidence was subjective and anecdotal. The Court did not have a complete, representative, or reliable evidentiary basis upon which to objectively assess the plaintiff’s claims. The claims were found to be speculative.

In dismissing the cost of future claim, the trial judge discussed the lack of expert and other evidence to establish a “real and substantial possibility” that the plaintiff required medical treatment in the future. The Court noted that the plaintiff did not provide evidence of the cost or duration of future care proposed, and the Court could not do its own research regarding this head of damage.

The real and substantial possibility threshold is lower than the balance of probabilities (more likely than not) but higher than speculative. The case illustrates that objective evidence is often important in meeting this threshold when assessing damages in personal injury cases.

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