Where a vocational assessment supports a finding of no residual earning capacity, a trial judge's conclusion to that effect does not necessarily contravene the Malec v JC Hutton principles requiring assessment by degree of probability, provided the finding reflects an assessment of the evidence rather than an impermissible balance of probabilities approach. The usual 15 per cent vicissitudes discount may sufficiently account for the possibility of intermittent casual employment. The burden of proving contributory negligence rests on the defendant, who must adduce evidence enabling the court to determine when the plaintiff should have observed the danger and that reasonable care would have avoided the collision.
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