Can I make a claim for business losses for my new business?


This issue was recently dealt with by the Supreme Court of British Columbia:

Here, a part time accountant, who had plans to expand her business into a full time practice, was injured in a motor vehicle accident. As a result of the injuries she sustained in this accident, she was unable to expand her accounting practice. She was, however, successfully able to prove her case in court.

Currently,the plaintiff had to prove that, if they had not been injured, they would have had a real and substantial chance of expanding their business. The “real and substantial” legal test is dealt with in more depth in the case of Perren v. Lalari:

Basically, what this legal test boils down to is whether you can convince the judge there was an actual chance of you losing income and not merely just “speculation”. The best way to do this is to provide evidence. Evidence can be many different things. In the above case involving the accountant, the plaintiff’s credibility was probably the main factor. The Plaintiff was an accountant and the judge believed that she would have expanded her business, if she had been healthy.

In more speculative cases, such as a young person who has not yet entered the legal market, things become more speculative. That does not mean, however, that they are barred from making a legal claim. The judge will look at factors like academic performance, what schools/programs have they applied to, what did their parents do for work, etc..

In cases where things are very speculative, it is especially important to hire a lawyer, in order to ensure your case is properly framed.


Should professional athletes who use steroids and other performance enhancing drugs be held civilly responsible for concussions?

The issue of concussions in professional sports has recently become prevalent. Most notably, in October a group of former NHL players filed a lawsuit against the NHL in the USA federal court:

Professional athletes as a whole have become faster and more powerful, and this has led to more injuries. A major reason for this increased athletic performance is the increased prevalence of performance enhancing drugs in professional sports. The biggest recent case was the Lance Armstrong saga, but the world of contact sports have had their fair share of issues.

Bryan Berrard was the first NHL player to test positive for steroids. This happened in 2006:

The NFL has had similar issues with concussion, and a settlement was approved by a federal judge earlier this year:

The NFL also has a much more sordid history of substance abuse violations:

The biggest issue I see with holding these players responsible for the injuries their drug use causes is going to be causation. It would be difficult to link the injuries from one player to specific substance abuse by another player. However there are specific incidences where a single body check or tackle will cause a injury.

Difficulties in formulating a legal approach should not result in the courts ignoring this issue as a whole. Is there really much of difference between using performance enhancing drugs in a contact sport and bringing a weapon onto the field. We wouldn’t flinch at holding someone who does the latter financially responsible. So why not hold other rule breakers responsible for the injuries they cause?


What is the maximum award for pain and suffering in British Columbia?

The maximum award for pain and suffering (also called non-pecuniary damages) was set by the Supreme Court of Canada in January of 1978 at $100,000. Taking inflation into account this comes out to around $350,000:

Keep in mind that this number is pegged to inflation and will increase as inflation increases. The idea behind non-pecuniary damages is to compensate a plaintiff for injury that cannot be calculated. Unlike a medical bill or vehicle repair, you do not get a bill for the stress and pain that an injury costs.

Generally, the maximum award is reserved for catastrophic injuries. This includes injuries such as severe brain injuries, loss of limbs, paralysis in the limbs, disfigurement, or loss of sight. However, cases of severe psychological injury can also lead to very high awards for non-pecuniary damages. Longstanding and severe depression can consume a person’s life. Injuries sustained in a motor vehicle accident or the resulting disability can be the trigger for this depression. Depression, unlike more objective injuries, often goes untreated. As such, it is always important to discuss not only your physical injuries with your doctor but also any changes in mood.

It should also be kept in mind that although the non-pecuniary award is capped, other awards are not. There is no maximum award for loss of income or costs of care. These heads of damage will often far exceed an award for non-pecuniary damages in a catastrophic injury case. For example in the case of a sever injury a person may need to hire a full time care aid for the res of their life. The cost of this easily exceeds the maximum of $350,000 for non-pecuniary award.

pain and suffering

What are the consequences of losing a personal injury case?

When choosing to go ahead with a personal injury case you should always consider the consequences of losing. In this recent Supreme Court of British Columbia case, the plaintiff was found to be 100% at fault for the accident (which involved a bicycle striking a truck). The Plaintiff was assessed court costs against him:

The idea behind court costs is to compensate (usually just partially) the successful party for expenses involved with running or defending a case, including the costs of hiring a lawyer.

In the above noted case the defendant was awarded court costs up to the moment of trial and double costs for the trial itself. The courts have the discretion to award double costs when a formal offer to settle that should have been accepted is made by the successful party.

Court costs can add up quickly. As they not only include an hourly and prescribed unit based fee but also include the costs of hiring experts. Additionally,the losing party typically does not get compensated for hiring their own experts. In this case the unsuccessful plaintiff was assessed 120 units at $110 + GST/PST for the trial alone. On top of that they would have had to pay a similar amount for the work leading up to the trial. As stated in my other postings, the experts can be extremely expensive, costing $10,000 or more for a report plus their court appearance fees.

It is likely the plaintiff in this action was on the hook for $30,000 or more.

This case highlights why it is important to properly assess your odds of success prior to starting a lawsuit and at each stage of the lawsuit. Lawyers working on a contingency fee will typically provide all prospective clients with a free initial meeting and discuss your odds of success with you.