Claims for speculative business losses in personal injury claims.

This is an issue that arises somewhat of often in my practice. Can an injured party make a claim for a small business that they have not actually started yet. This issue was dealt with in this recent Supreme Court of British Columbia case:

The plaintiff in this case was a 59 year old woman who had hoped to start her own cosmetics business. She had been injured in a motor  vehicle accident and was claiming that these injuries were preventing her from running a successful multi-million dollar cosmetics business.

The plaintiff in this action had taken a number of steps towards starting their business, including:

  1. Incorporating their business;
  2. Acquiring stock;
  3. Labeling and branding her stock;
  4. Getting approval for sale from Health Canada; and
  5. Applying for trademarks.

Approximately 2 years prior to their injury the plaintiff held a private seminar, where she successfully sold various beauty products. Her stated goal was to hire a team of salespeople to sell her products via future private seminars.  The judge, unfortunately for the plaintiff, found various deficiencies in the plaintiff’s claim, including that:  her goal of having seminars with a sales team was vague; the plaintiff’s evidence about market conditions was inadequate; the plaintiff’s previous lack of success with this business should be taken into consideration;  the plaintiff had not devouted full time hours to her business prior to her injury; and the plaintiff, although partially, was not totally disabled from running her business as a result of her injuries.

As a result, the plaintiff was not given an award for past nor future loss of earnings for her proposed business. She was, however, given an award of $100,000 for loss of her “entrepreneurial spirit”. This amount was considerably less than the several million dollar claim that the plaintiff was advancing for loss of profits from her proposed cosmetics business.

This case illustrates the difficulty that many plaintiffs will face when making a claim for income losses, particularly when there is a high degree of uncertainty concerning their potential earnings.

Whiplash: what kind of compensation are you entitled to?

As per this recent example, awards for whiplash injuries can be very high:

The plaintiff in this action was awarded over $500,000. She retained a very knowledgeable expert in Physical Medicine and Rehabilitation, Dr. Heather Finlayson. Dr. Finlayson, in her medical report, stated that whiplash injuries involve “rapid movements of the head and neck forwards and backwards and/or side-to-side and can cause “high-velocity stretch of muscles and their attachments, such that the muscles go into painful spasm“. Whiplash type injuries can lead to various chronic injuries – in this case, myofascial pain syndrome.

What this case illustrates is that, when assessing damages, it is not necessarily the mechanism of the injury that is important but the effect on the injured party. In other words, no two whiplash cases are the same and every case must be assessed on its individual merits. For example, two people involved in the same accident might both suffer whiplash-type injuries. One person may heal very quickly and the injury may have relatively little impact on their lives. As a result, the award for their damages is likely to be relatively low. Another person might suffer far more long term and disabling injuries, resulting in severe limitations to their professional and personal lives. They would likely be entitled to a relatively high award.

Part 7 benefits and pre-existing injuries.

Part 7 benefits, also known as “No Fault” benefits, are benefits owed to parties injured in motor vehicle accidents in British Columbia. These benefits are payable regardless of who is at fault for a car accident, hence the moniker “No Fault” benefits. These benefits will cover a portion or all of various treatment expenses.

ICBC may attempt to use the presence of a pre-existing injuries as a justification for denying Part 7 benefits; the reasoning being that ICBC should only be responsible for injuries actually caused by a motor vehicle accident. However, it should be noted that there is a large difference between a pre-existing condition that contributes to an injury that later requires treatments and a pre-existing condition that is the sole reason for the treatment. Furthermore, the onus lies on ICBC to prove that “but for” the pre-existing condition, the treatments in question would not be required:

As per a recent Court of Appeal decision:

[67]         The judge concluded at para. 42 that ICBC had failed to prove that, but for the pre-existing condition, Mr. Kozhikhov would not have needed the treatments then claimed under Part 7.  He granted Mr. Kozhikhov summary judgment in the amount claimed of $10,863.86.

[68]         The judge was faced with conflicting medical evidence.  He assessed this evidence in his role as the trier of fact.  He then applied a legal standard (the “but for” test of causation) to the facts as he found them.  The judge’s finding cannot be traced to an error in his characterization of the legal standard.  Therefore, his findings are reviewable on the deferential standard of palpable and overriding error.

[69]         In my opinion, the judge’s findings were clearly open to him on application of the “but for” test of causation.  His findings of fact are well supported by the evidence.  ICBC has failed to identify a palpable and overriding error of fact, or any error of law, so it is not for this Court to intervene: Housen v. Nikolaisen, 2002 SCC 33.

This recent decision re-affirms an injured party’s right to Part 7 benefits despite a pre-existing condition. If ICBC wants to deny benefits, they must prove on a balance of probabilities, that the benefits would not be required if the pre-exiting condition did not exist. ICBC must also prove that the pre-existing condition would have resulted in the need for treatments in question regardless of the new accident related injury.

Future Costs of Care

Care costs can be one of the biggest financial worries to an injured party. The cost of even simple treatments, such as physiotherapy and massage therapy, has increased dramatically. These costs can be especially burdensome to someone who is limited in their ability to earn income. For someone with a long-term or permanent injury these expenses can continue long after their case is settled. Depending on the nature of the injury, these future care expenses can be an injured party’s largest losses. Injured parties may, therefore, be entitled to awards not only for past expenses but also for expenses they are likely to incur in the future.

A recent Supreme Court of British Columbia case awarded a plaintiff a large Cost of Future Care award:

Here, a plaintiff suffered a whiplash type injury, which eventually developed into chronic pain and led to various psychological injuries. The courts awarded the plaintiff costs that were deemed “reasonably necessary” costs necessary  to restore the plaintiff to their pre-accident condition to the extent that is possible. All costs had to be objectively justified by medical evidence. The plaintiff, who was likely to suffer from ongoing physical and psychological injuries well into the future, was awarded $200,000 for Cost of Future Care.

The judge in this case relied heavily on the evidence of expert witnesses who stated the plaintiff required various forms of treatment to treat his ongoing injuries. This illustrates the importance of ensuring you have effective counsel who will pick and fund the retention of these medical experts.

Courts award an injured party Future Wage Losses even though his earnings increased.

The issue of future wage losses is a complicated one. It involves an assessment of future events that may or may not occur. The courts have typically quantified this head of damage by basing claims on events that have a “real and substantial possibility” of occurring.

The courts dealt with this issue in a recent Supreme Court of British Columbia case:

This case involved a 37 year old power line technician who had been diagnosed with chronic lower back pain. After a brief period off work, the plaintiff in this case was not only able to continue working but had actually secured a new and higher paying position. His current and former employers all had excellent things to say about his work performance. The courts found the plaintiff’s ability to work was the result of his “stoic attitude to employment” and that he should not be punished for continuing to work.

The courts did find that the plaintiff did have a real and substantial possibility of having to retire three years early, and there was a 25% chance of this happening. They calculated the present value of his wage and reduced that award to 25%, to reflect the probability of the outcome actually occurring.

This case illustrates how complicated judging awards for future damages are, and why you should always have a competent and experienced personal injury lawyer represent you in any major personal injury claim. The calculation of wage losses is not a simple matter and requires an assessment of the entirety of a case and gathering multiple forms of evidence.

The government of British Columbia is cracking down on highway driver’s….driving too slowly.

New legislation will increase the power police have to pull over drivers who are obstructing the left or “passing lane” of a highway:

As it stands now, there is already a $109 fine for driving in the left lane slow enough to obstruct traffic. Apparently, the problem with this old law was that it was not specific enough and tickets were often thrown out. This legislation, in combination with higher speed limits (up to 120 km/hr) in some areas, is designed to unclog British Columbia’s highways and reduce accidents.

Firstly, it’s interesting to see legislators take a more practical solution to reducing accidents. The knee jerk reaction seems to be to obstruct and slow traffic. This new legislation takes many of the realities of highway driving into consideration. Obstruction traffic can also lead to motor vehicle accidents. The obvious mechanism is via rear end collision, but other scenarios, such as cars sliding off roads are also entirely possible.

I am curious to see what the final wording of this legislation is. Surely, they won’t go as far as to penalize drivers who are driving at or around the speed limit. The goal of this legislation, I’m sure, is to increase the flow of traffic up to the speed limit, not encourage people to exceed it.


What is an Examination for Discovery and can I be forced to attend one?

If you bring an action in the Supreme Court of British Columbia you must make yourself available for an examination for discovery (an “XFD”). An XFD is an oral examination under oath. Furthermore, a written record is made of everything you say at an XFD. This means that anything you say can be used against you in later proceedings, which can lead to serious liability issues. For example, if you say one thing at an XFD and then say another thing at a trial, the judge can use this against you to make negative inferences about your credibility as a whole.

The procedure of an XFD in an ICBC case usually involves a lawyer from ICBC spending 2 or more (it can be a lot longer for catastrophic injuries) asking the plaintiff questions. A wide variety of subjects are fair game when making a claim for personal injury. This can include questions about your medical history and personal life.

There are, however, limitations to what can be discussed at an examination for discovery. For example irrelevant and privileged questions are not fair game. A competent lawyer will be able to advise you on what your should and should not be answering. They will also be able to attend the XFD with you and stop the other lawyer from asking inappropriate questions. The lawyer for the other party will be sitting across the table from you asking many questions, and they may not be nice about it.

The above shows how important it is to get proper legal advice before an XFD. A lawyer will, unfortunately, not be able to help you answer any questions at an XFD. They can, however, give you advice and properly prepare you beforehand. An XFD is often a key point in a personal injury lawsuit. It is an opportunity for the opposing parties to meat each other and determine the strength of their case as a whole. This is especially important for personal injury cases, which often hinge on the credibility of the plaintiff, as many injuries, such as soft-tissue injuries, cannot always be objectively observed.