Loss of Earning Capacity vs. Loss of Future Earnings

Two Measures, One Goal: Compensate Economic Loss

Both loss of future earnings and loss of earning capacity compensate for reduced economic potential from injury or wrongful conduct. They differ in what is measured: specific employment income vs. open labour market capacity.

Using the wrong measure invites exclusion, adverse jury instruction, or successful CPR Part 35 (Ikarian Reefer) challenge. Align pleadings, court directions, and expert methodology before the economist finalizes the report.

Loss of Future Earnings Defined

Compares but-for earnings in the claimant's job or career path to actual or expected post-event earnings. Requires documented pre-event earnings history. Best when the claimant had stable employment and the dispute is growth rate, mitigation, or post-injury wage level—not whether a capacity measure applies at all.

Loss of Earning Capacity Defined

Compares pre-event market capacity to post-event market capacity using ONS ASHE occupational earnings for suitable jobs. Essential when the claimant cannot return to their career, has minimal earnings history, or works below their capacity after injury.

Vocational expert input on suitable occupations is typically required. The economist assigns dollar values—not job placement opinions.

Forum and Fact Patterns

• Some states treat the measures as overlapping; others distinguish them strictly
• Young claimants and students almost always require capacity analysis
• TBI and chronic pain cases often show capacity loss exceeding actual wages
• Employment cases may use past loss of earnings/future loss of earnings rather than either tort measure
• Some cases analyze both measures in the alternative

Practical Steps for Counsel

Confirm applicable law and jury instruction language. Direct the economist in writing on which measure(s) to analyze. Ensure vocational reports precede final economic report in capacity cases. Anticipate opposing expert's measure choice and prepare rebuttal accordingly.