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Loss of Use in Auto Accident Claims Clarified by the Court of Appeal


This appeal from a $15,000 award as compensation for loss of use of his Ferrari resulting from the respondent car dealership’s negligence was dismissed. The court has updated and clarified the law that applies when a claimant loses the use of a vehicle, especially if the vehicle would be used to make profit, such as a work truck.
The Court of Appeal found that claimants seeking general damages due to the negligent loss of use of profit-generating property ( e.g. truck, ambulance) can use estimates of the actual loss of use in order to arrive at a compensatory award. Also personal injury lawyers should be aware that,

“[33]  Money damages may also afford some measure of compensation for being deprived of property that does not generate revenue. An award of general damages may be made, for example, to one who has suffered the temporary loss of the enjoyment associated with ownership of a piece of art, even where no measurable pecuniary loss has been suffered. Even in such cases, damages are intended to be a measure of the plaintiff’s loss, not the defendant’s gain. While the use that might have been made of the item by the plaintiff is a factor that should be considered in the assessment of damages, use may amount to no more than having the object present. The result may seem to be anomalous but is justifiable in principle.(Miller v. Brian Ross Motorsports Corp.,2017 BCCA 166)…

[35]   There are cases where the absence of the misappropriated chattel might go unnoticed and where no expense is incurred, but damages are nevertheless payable by the tortfeasor. As noted above, the Supreme Court of Canada has approved the passage in the judgment in Blake where Lord Nichols noted that the common law, pragmatic as ever, has long recognized that there are many situations where a strict application of the principle that damages are intended to be compensatory would not do justice between the parties and where fairness demands a different measure. In general, such cases are rare, because legal certainty demands that exceptions to the rule of general application be few and clearly justified. A restitutionary approach to damages in tort may be appropriate where “the commission of a wrong results in a benefit to the wrongdoer which exceeds and outstrips the loss to the person wronged”[2] or where the tortfeasor has used the plaintiff’s property and thereby benefited (as, for example, in Strand Electric and Engineering Co. v. Brisford Entertainments Ltd., [1952] 2 Q.B. 246 (C.A.)). In my view, in the case at bar there was no reason to depart from the compensatory rule. The claim was in negligence, the tortfeasor did not use the vehicle and derived no benefit from its possession.”

 
Posted by Vancouver Personal Injury Lawyer  Mr. Renn A. Holness B.A., LL.B. 

Tags: Loss of Use, Rules of Evidence

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