On October 11, 2002, the New Hampshire Supreme Court issued a decision which clarifies the law regarding evidence necessary to support a claim for lost earning capacity in a personal injury action.

The decision, Vachon v. New England Towing, Inc., arose from an incident in 1997 when the plaintiff received injuries caused by the failure of the winching mechanism on defendant's flat bed tow truck. The plaintiff's automobile rolled off of the back of the truck, striking the plaintiff when it did so. Trial before a jury in the Hillsborough Superior Court, Northern District, resulted in a plaintiff's verdict of $50,000.

The defendant appealed on the basis that the trial judge should have granted its motion for non-suit or its motion to set aside the verdict because the evidence presented by the plaintiff on liability was insufficient. The defendant also argued that the judge's instruction on lost earning capacity was erroneous.

The Supreme Court first affirmed the lower court's denial of defendant's motions for non-suit and to set aside the verdict, but ordered a new trial on damages only because the instructions given to the jury on lost earning capacity were erroneous.

At trial, the plaintiff testified that he experienced pain while working at his job, and also presented testimony from a physician that, based on the AMA Guidelines, he suffered a five percent impairment of the whole person because of his injuries, and that his work difficulties were consistent with his injuries. The plaintiff, however presented no evidence that the pain or difficulties he experienced at work translated to a loss of income.

There was evidence that after the accident, the plaintiff went back to school, seeking a degree in civil engineering, and that at the time of the trial he was working in computer drafting, a job that did not require the kind of physical labor he had done at the time of the accident. But there was no evidence that he changed careers because of his injury.

Plaintiff's counsel argued to the jury that they could award damages for future lost earning capacity, and suggested that a reduction of five percent, amounting to $20,000, might be appropriate.

The trial judge then "instructed the jury that, in awarding damages, it should consider '[a]ny future wages that plaintiff probably would have earned if he had not been injured.'" Vachon, supra. The defendant took a timely exception to this instruction.

While recognizing the oft-stated propositions that "there is no fixed rule to calculate the amount of damages to be recovered for loss or diminution of earning capacity," and that "damages need not be proven with mathematical certainty," the Supreme Court held that "'the impairment of earning capacity must be shown with reasonable certainty or reasonable probability, and there must be evidence which will permit the jury to arrive at a pecuniary value of the loss.'" Id., citing Annotation, Sufficiency of Evidence, In Personal Injury Action, To Prove Impairment of Earning Capacity and to Warrant Instructions to Jury Thereon, 18 A.L.R. 3d 88, 97 (1968).