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:

http://www.courts.gov.bc.ca/jdb-txt/sc/17/06/2017BCSC0644.htm

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.

Has Pokemon Go resulted in injuries affecting you or your loved ones?

Reports of people injured in Pokemon Go incidents, some genuine and some fabricated, are flooding the internet. In a high profile incident, a man in Victoria, Australia crashed into a school:

http://www.huffingtonpost.com.au/2016/07/28/driver-crashes-car-into-school-because-of-pokemon-go/

Local police released the following statement on their Facebook account:

ONIX-CEPTABLE – POKÉMON GO NO NO

Casey Highway Patrol is investigating after a motorist made an unplanned PokéStop late yesterday when he crashed his car into a school in Berwick.

Police have been told the local man was trying to capture a creature from the Pokémon Go application when he appears to have lost control on Ridgemont Drive about 6.50pm.

It is understood the Berwick motorist was travelling north and negotiating a roundabout when he lost control at Flowerfield Close.

He ran off the road through a fence and into a school portable building.

Luckily no one was injured.

The 19-year-old did not level up nor collect any stardust or candies only debris from the crash.

Any PokéBalls, eggs or potions the driver may have had remaining only attracted police leaving the wild Pokémon for another day.

The driver furnished a negative preliminary breath test however it is expected he will be charged on summons in relation to careless driving.

Leading Senior Constable Julie-Anne Newman
Media Officer
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Luckily no on was hurt in this incident, but it illustrates the danger of operating a motor vehicle while distracted. Like texting, Pokemon Go diverts a driver’s attention away from the road.

This story out of Pittsburgh illustrates the danger Pokemon Go can be to pedestrians:

http://www.wtae.com/news/teenager-hit-by-car-blames-pokemon-go/40694020

Here a pedestrian, who had become distracted by the game, ventured unsafely across a street and was struck by a motor vehicle.

Science fiction envisioned enhanced reality tools that would provide us with hyper vigilance and increased information about the world around us. The reality of, so far, seems to be differing significantly.

Personal injuries and buses: injured party awarded $1,000,000 after Greyhound bus accident.

As Vancouver upgrades its mass transit and increased traffic makes personal vehicles less desirable, we are likely to see more people riding mass transit and shared transportation, which is likely to increase the total amount of personal injuries arising from these modes of transportation. In a recent Supreme Court of British Columbia, a man was awarded approximately $1,000,000 after sustaining an injury on a Greyhound Bus that was found to be entirely the fault of the bus driver:

http://www.courts.gov.bc.ca/jdb-txt/sc/15/21/2015BCSC2147.htm

The plaintiff in the above case was awarded a settlement just shy of $1,000,000. The majority of his claim arose from his inability to return to work and Past Wage Losses. Much of the evidence in this case relied on the Plaintiff’s own “self-reporting” to doctors, as there was little objective evidence of injury. However, the judge accepted the majority of the Plaintiff’s evidence.

There a few issues specific to injuries involving mass transit and shared modes of transportation. A major one is insurance coverage. In situations where you have many people injured in one incident, issues with insurance coverage can arise. When an insurance policy does cover the total amounts of the claims against it not all parties may be able to actually receive the funds they are awarded. For example if an insurance policy limit is $2,000,000 but 4 plaintiffs are awarded $1,000,000 each, it’s not possible to pay out all the plaintiffs in full from that policy.

When, as in the above case, a Greyhound bus driver is at fault for the accident, insurance policies become less of an issue. Large bus and transit companies like Greyhound and Translink have large insurance policies and lots of assets. However, this might not be the  case with small bus services providing shuttle buses or “party buses”. Often these services are run by smaller companies with small insurance policies and few assets. While a large settlement is great, actually collecting that settlement may be another issue entirely.

What happens if I am injured in a hit and run?

A “hit and run” involves one or more drivers leaving the scene of an accident without providing their name and address. It is a crime in Canada to commit a hit and run. The punishment for this crime can be up to life in prison, depending on the circumstances and injuries to the parties involved.

A major issue here for the injured party is that you do not know who to sue for damages. This can be especially devastating for injured parties who are left unable to work or with huge medical bills.

However, just because you do not know the identity of the other driver that does not mean you cannot bring a lawsuit for, at least a portion of, your losses. You can sue ICBC directly if you are injured on a “highway” in British Columbia. However, the requirements to do so are more onerous:

  1. Firstly you have to make all reasonable efforts to identify the driver who has hit you. What is considered reasonable is a question of fact and dependent on the individual circumstances. It can be as simple as putting up signs in the area looking for witnesses and reporting the incident to the police, but it can also include much more; and
  2. There are also special notice requirements that must be given to ICBC. You must give ICBC written notice “as soon as reasonably practicable and in any event within 6 months after the accident that caused the bodily injury, death or property damage.”

Given the onerous requirements to bring a lawsuit when you do not know the identity of the other driver, it is especially important to talk to a personal injury lawyer as quickly as possible.

For the drivers who have fled the scene of an accident, another potential consequence, if you are caught, is having your ICBC insurance policy voided and having the plaintiff go directly after your personal/business assets. This, in most cases, will have negative consequences for the plaintiff as well. It’s always better to sue a fully insurance defendant. Insurance companies almost always have deeper and more liquid pockets.

Another issue for an injured party here is that basic unidentified motorist insurance provided by ICBC will only cover up to $200,000 of a claim, and, if you have suffered a serious injury, your claim may be limited to only a portion of your losses. This amount can be awarded in court or negotiated in a settlement outside of court. As always, I recommend consulting with and hiring a lawyer to ensure you get the best possible award. As previously, stated this is particularly important with hit and run cases that have extra requirements with subtle legal nuances. Failure to meet these requirements could bar you from making a claim.

hit and run accident

The penalty for being caught using your cell phone while driving has increased: the “crotches kill” campaign.

As of last Monday (October 21, 2014), the penalty of using a hands free device, including a cellular phone, while driving has increased.

http://globalnews.ca/news/1624055/stiffer-distracted-driving-penalties-as-of-monday/

Prior to Monday the penalty was merely a $167 fine. As of Monday the penalty now includes 3 demerit points on your license. An increase in the fine is also being reviewed.

Why was this new steeper penalty put in place? My guess is the previous solely fine based penalty was not effective. As per my previous post, according to ICBC, distracted driving is now the second leading cause of car accident related deaths:

Distracted Driving is Now the Second Leading Cause of Car Accident Related Deaths

Some may see this as a simple cash grab. However, as easy as it is to be cynical about any government policy change that involves a fine (or in this case demerits that often have to be purchased back) or any information from ICBC, it’s important to keep in mind that both have a vested interest in keeping people out of car accidents in the first place. The governments greatest expense is health care. ICBC’s greatest expense is payouts from accidents.

According to recent info published on ICBC’s expenses, payouts on claims account for 75% of ICBC’s expenses:

http://www.fin.gov.bc.ca/ocg/ias/pdf_docs/ICBC_Review_2012.pdf

Drive safe people and put away those cell phones. As according to the Traffic Safety Commission “crotches kill”.

Who will fund my personal injury case?

Disbursements are the expenses of your personal injury case. Typically lawyers working on a contingency will pay for your disbursements. They may or may not charge you interest. The amount of interest a lawyer charges you is something you should be aware of and work into your calculation of what the true cost of your lawyer is.

The biggest disbursements are typically medical legal expenses. The person who is responsible for causing the accident is typically responsible for paying for disbursements that are found to be both “necessary” and “reasonable”.

What is necessary and reasonable was dealt with in a recent Supreme Court of British Columbia case, where a plaintiff suffered a serious injury in a roll-over style car accident:

http://www.courts.gov.bc.ca/jdb-txt/SC/14/18/2014BCSC1844.htm

Here several substantial disbursements were in dispute. The cost of a neuropsychologist was allowed. Even though the neuropsychologist did not ultimately find a brain injury, at the time the report was ordered there was a possibility of a brain injury. The relevant time is when the cost is incurred.

The cost for a functional capacity evaluation, which evaluate a plaintiffs ability to work, was denied, as the judge found that at the time of ordering the report, there was not a real and substantial probability of future wage losses.

This case illustrates another important benefit of hiring a lawyer, which is funding your case. Here the cost of the litigation easily topped the $20,000.00 mark. The lawyer presumably funded the injured party’s case.

449px-Bank_vault_1901

Man Suffers Brain Injury in Biking Accident, Then Sues the City of North Vancouver for Removing Bike Lanes

http://www.cbc.ca/news/canada/british-columbia/injured-cyclist-sues-over-north-vancouver-bike-lane-1.1286465

Firstly, I’m going to add that anyone who is considering suing a city in the lower mainland should be aware of the drastically smaller limitation dates which apply. The Local Government Act requires you to “give notice in writing, setting out the time, place and manner in which the damage has been sustained,” and deliver that to the offending municipality within “2 months from the date on which the damage was sustained.”. Then you have only 6 months to file a lawsuit, as opposed to the typical 2 years. Failure to meet these requirements can result in you being barred from making a claim. In the case of a personal injury involving a municipality (ex. The City of Vancouver) it is especially important to speak with a lawyer as quickly as possible.

The above article raises an interesting point: does the City of North Vancouver, once encouraging someone to bicycle, then have a continuing obligation to keep them safe? It’s no secret that various municipalities in Vancouver have been encouraging people to ride bikes to relieve congestion caused by too many cars on the roads.

The plaintiff’s major injury here is bleeding inside his brain, which can be totally disabling. The City of North Vancouver put a bike lane on Keith Road but then removed it following complaints from motorists. Are they now responsible for the plaintiff’s injuries.

Bike lanes are a fairly new phenomenon in Canada, and the law on the subject is far from clear. The idea is obviously to keep bicycles and motor vehicles apart, thus avoiding accidents. Does the City of North Vancouver have an obligation to protect cyclists by installing bike lanes? Did they encourage this accident by temporarily installing the lanes? Let me know what you think.

bicycle accident