Making Waves: How much are concussion cases involving entrepreneurs worth?

In this recent Supreme Court of British Columbia case, a successful owner of a brand devoted to the production of surf boards and clothing was injured in a motor vehicle accident. The injured party was riding a motorcycle when they were struck by an oncoming car making a left turn. This was a significant crash that involved the oncoming vehicle deploying both of its front airbags. The plaintiff was thrown violently to the ground and remembers waking up in the intensive care unit of the hospital. He was left with long lasting injuries including a concussion and a knee injury.

Prior to this accident, the plaintiff had, per the judge’s own words, “achieved more by the age of 32 than many people achieve in an entire lifetime”. His line of clothing and surf boards had, despite some ups and downs, grown greatly.

The courts were left with the difficult task of assessing the plaintiff’s income losses, both past and future. As in many cases involving business owners, the plaintiff’s income fluctuated dramatically, and his future income was even more uncertain, as recent financial restructuring resulted in dramatically increased possibilities of both failure and success.

The plaintiff, following his accident, was left partially impaired. He was able to continue working in his business, but did so with less confidence and vigor. He had to delegate tasks to others. The judge, however, concluded that the plaintiff still managed to demonstrate above average business skill and great creativity. In other words, the plaintiff was found to have a “partial impairment”. The judge ultimately decided that the best way to access the plaintiff’s losses was under the “replacement approach”, as the plaintiff had already hired employees to perform some of his tasks. The plaintiff was given an award for the likely costs of replacement labour for tasks he would have performed himself but for the accident.

The plaintiff was ultimately awarded a total award of approximately $1,000,000.00. This case demonstrates that even though the assessment of wage losses can be difficult, the courts will continue to do their best to assess those losses.

Who is at fault for a rear end collision?

Generally, the driver of the rear vehicle is at fault. Motorists have a duty to look ahead and keep a proper look out. Additionally, Section 162 of the Motor Vehicle Act has been interpreted to mean that drivers have a duty to leave significant space in front of them to allow them to stop safely without hitting the vehicle in front:

Following too closely

162(1) A driver of a vehicle must not cause or permit the vehicle to follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicles and the amount and nature of traffic on and the condition of the highway.

(2) The driver of a commercial motor vehicle or a combination of vehicles, when driving on a roadway outside a business or residence district, must not follow within 60 m of another commercial motor vehicle or a combination of vehicles, but this must not be construed to prevent one commercial motor vehicle or a combination of vehicles overtaking and passing another.

(3) The driver of a motor vehicle in a caravan or motorcade, other than a funeral procession, outside a business or residence district, must leave sufficient space between his or her vehicle and another vehicle or combination of vehicles to enable a vehicle to enter and occupy that space without danger.

The courts have also stated that there is a presumption that the rear driver is at fault, unless they can prove they are not. Defenses do, however, exist. Examples of situations where the lead driver may be found partially or totally at fault include, where:

  1. The lead driver has stopped in a place they were not permitted to.
  2. The lead driver has stopped suddenly and without sufficient reason.
  3. The lead driver has stopped in a place where their vehicle is not easily visible.
  4. The lead driver has made an unsafe lane change and “cut off” the rear driver.
  5. The lead vehicle does not make proper use of their turn signals or brake lights or has malfunctioning turn signals or brake light.

As per the above, there is a heavy onus on the rear vehicle to demonstrate why they are not at fault for a motor vehicle accident. Only in exceptional circumstances will a lead vehicle be found 100% at fault for a rear-end collision and, thus, be unable to recover damages for a personal injury case.



Whiplash leads to chronic pain and $400,000 award.

The plaintiff in this case was 67 years old and worked as a care aid and masseuse. She was injured in a motor vehicle accident after an oncoming vehicle made a left turn in front of her at an intersection. She sustained multiple physical injuries – most notably a whiplash type injury. The plaintiff later went on to develop chronic pain and psychological injury, including depression.

Of interest in this case was that the judge found the plaintiff’s ongoing chronic pain to be largely psychological and pre-existing, but reactivated by the initial genuine physical injuries. Since the plaintiff had a genuine belief that her pain was real, she was entitled to compensation for it:

“[343]     She reactivated a pre-existing major depressive disorder with psychosis which is now in partial remission. Although she suffers from chronic pain disorder, I do not accept that the pain in the plaintiff’s groin, thigh and numbness in her lower legs were caused directly by the accident; they are the result of a chronic pain disorder or somatoform disorder. Nonetheless, her perception of pain in the low back is disabling and a function of the chronic pain disorder—thus, some of her current symptoms are contributed to indirectly by the accident.”

The plaintiff was given an award of $180,000 for pain and suffering. She was also given a relatively large award for Future Cost of Care of $90,000. The judge decided that an award for Future Cost of Care “should reflect what the evidence establishes is reasonably necessary to preserve the plaintiff’s health.” The plaintiff’s award included amounts for: physiotherapy, a driving service, and further psychological treatment.

This case illustrates the complexities involved in chronic pain cases, as the source of these injuries is typically both physical and psychological. This case also shows a growing acceptance by the courts to acknowledge injuries of a purely psychological nature.

Wage Loss Claims and Pre-Existing Injuries.

Wage loss claims that involve a plaintiff with pre-existing injuries are always complicated. It is the courts role to determine what losses are attributable to the new claim and what losses would have occurred in any event.

In this recent Supreme Court of British Columbia case, the plaintiff was employed as a fisherman, with a history of working as a crew member or a skipper on seine style fishing boats. The plaintiff, at the time of their motor vehicle accident, was approximately 67 years old and had a pre-existing arthritis in his wrists and hands and diabetes. The plaintiff, after the accident, had surgeries to correct carpal tunnel syndrome, but the courts ruled that the carpal tunnel syndrome and the resulting surgeries were unrelated to the accident. The courts also ruled that the plaintiff’s arthritis would have gotten worse, even if the accident had not happened.

The plaintiff suffered a variety of soft tissue – including whiplash – injuries in a motor vehicle collision. Most notably, he suffered injury to his wrists and hands. This gave the courts the difficult task of determining what damages were related to the pre-existing hand and wrist injuries and which damages were related to injuries sustained in the motor vehicle collision. The plaintiff worked for approximately 3 more years after their accident but did not work afterwards. The plaintiff’s inability to work was the result of physical injuries and external market conditions, such as variations in fish runs.

The courts ruled that the plaintiff did have some impairment in his ability to work caused by their motor vehicle accident, but much of the plaintiff’s ongoing and previous income loss were due to his pre-existing injuries and resulting surgeries.

This case illustrates the difficulty in proving a past or future wage loss claim, but also illustrates that having pre-existing injuries is not a complete bar to recovery.


Plaintiff given award for Early Retirement.

In a recent Supreme Court of British Columbia decision, a plaintiff, who was a 53 year old aesthetics instructor, was given an award of $27,000 to compensate her for the possibility of early retirement.

What’s interesting about this award is that the plaintiff, who was only 53 years old, did not plan to retire until age 65, and these damages were entirely speculative. The judge was satisfied that there was a “real and substantial” possibility of loss and treated the possibility of early retirement due to injury as a lost capital asset. The judge then awarded the plaintiff a half a year of wages.

The plaintiff in this case had suffered a chronic soft tissue injury arising from 2 separate motor vehicle collisions. Just over 4 years after their first accident, the plaintiff continued to suffer from ongoing back and neck pain that was disrupting her ability to sleep and leading to fatigue. The plaintiff had to switch roles at work. She no longer was able to be as active in instruction and instead focused on administrative work. The judge concluded that there was room for improvement in the plaintiff’s condition but no objective basis to conclude that the plaintiff would make a full recovery.

This case illustrates many of the challenges that arise when dealing with claims for future losses.

What is Whiplash?

The modern definition of whiplash, as it is used by various legal and medical bodies in British Columbia, traces its origins back to a study commissioned by the Quebec Automobile Insurance Society in 1989. The “Quebec Task Force” (“QTF”), which was the body commissioned with completing this report, provided an in depth report on whiplash, which included a “Whiplash Associated Disorder” (“WAD”) grading scale, which remains in use today.

The QTF completed their report at a time when much less was known about soft-tissue injuries and rehabilitation. As such, much of their report is no longer seen as valid, particularly the parts that relate to recovery time. The reality of long-term and even permanent soft tissue injuries arising from whiplash injuries is far more accepted now.

However, the grading scale, which is based on a score of 0-4, remains heavily in use. For example, the Insurance Corporation of British Columbia references this scale on their CL-19 forms, which are routinely provided to treating doctors when a personal injury claim is made. The British Columbia Chiropractors Association has similarly adopted this scale. The WAD scale involves placing whiplash injuries into 5 separate categories:

  1. Grade 0 WAD: No complaint about the neck and no physical sign of injury
  2. Grade 1 WAD: Neck complaint of pain, stiffness or tenderness only and no physical sign of injury
  3. Grade 2 WAD: Neck complaint and muskuloskeletal sign(s) of injury
  4. Grade 3 WAD: Neck complaint and neurological sign(s) of injury
  5. Grade 4 WAD: Neck complaint and a fracture or dislocation

Of note, is that as you go up the grading scale, the descriptions of the injuries become less subjective and more objective. As previously discussed diagnosing a subjective injury largely involves relying on complaints made by the injured party, whereas objective injuries are typically physically observable, such as broken bones. As, the vast majority of personal injury whiplash cases involve primarily subjective injuries, hiring a competent lawyer to properly frame these cases is extremely important.

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.