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Compensation for Loss of Business Denied Despite Injuries

In this case study, the small business owners suffered neck injuries and soft tissue injury in a car accident that occurred at the intersection of 57th Avenue and Angus Drive in Vancouver. The claimants’ vehicle was knocked to the curb being hit on the left front corner. The vehicle’s two front seat airbags deployed and ICBC deemed the vehicle a total loss.  The defendant admitted liability for the accident.

The husband and wife were owners and operators of a small business which sold zippers. They claimed their injuries resulted in business losses and resulted in their decision eventually to close the business. Their combined past and future loss of earnings claim for the loss of the business was between $825,000 and $975,000.

No inventory records or sales records were provided to the court, which could have clarified the claim.  As the judge quoted,

… It is perfectly appropriate for a jury to infer, although they are not obliged to do so, that the failure to call material evidence which was particularly and uniquely available to [the plaintiffs] was an indication that such evidence would not have been favourable to them. It is a common sense conclusion that may be reached by any trier of fact. There are no authorities which cast any doubt upon the proposition.( Cahoon v. Brideauz, 2010 BCCA 228 at para. 48)

The judge agreed with the defendant that the failure to produce documents prejudiced the defendant’s ability to investigate and defend the business loss claims.  The inference drawn by the judge was that the documents not produced would have been detrimental to the claim for loss of income. There was evidence to suggest that the claimants simply decided that continuing in what had become a marginal business was no longer worthwhile, and that their energies would be better spent elsewhere.

Of note the husband testified that:

1.    the company was not operating at full capacity prior to the car accident;

2.     even in the first six months after the accident, the company was able to meet all of its contractual obligations;

3.     to his knowledge he never lost any customers as a result of his injuries;

4.     he never turned down an order, or cancelled an order;

5.     he did not decline any money making opportunities;

6.     there was no restriction on his ability to make up for lost capacity by working extra hours in order to meet the demands of the customers;

7.    the company never hired anyone to do work that the claimants were not able to do;

8.     he was unsure how many orders the company may have lost in circumstances where he could not deliver the product in time, but this did not happen often. His customers were generally patient.

The husband also signed a statement for ICBC  eight days after the accident in which he said he had more employees than proven. His statement to ICBC also indicated that he did not expect to lose income.

The claims for past and future loss of earnings and business losses were dismissed. The husband and wife were awarded $60,000 and $80,000 respectively for the pain and suffering arising the from the car accident injuries (Jang v. Andrade,2018 BCSC 1516).

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

Tags: Adverse Inference, ICBC Statement, loss of earning capacity, Pain and Suffering, Rules of Evidence

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