Many British Columbia residents work for themselves. This can have significant advantages, but there is also one big disadvantage: if you are seriously injured in a car accident, your business may not be able to continue while you are in recovery. If you find yourself in this situation, you may be able to seek damages against the negligent driver for the loss of your past and future earning capacity related to your business.
Fabian v. Song: Judge Skeptical That Car Accident Destroyed Plaintiff’s “Growing” Painting Business
Establishing the impact of an accident on your business is not always a simple task. Even defendants who admit liability for the accident itself will typically balk at paying damages they consider to be “speculative” at best. This is why it is critical to present the Court with as much as evidence as possible regarding the state of your business both before and after the accident. Any little detail may prove critical in swaying a judge to your side.
Here is a recent case in which the plaintiff failed in that task. The plaintiff in this lawsuit was injured in a 2013 two-car accident. The plaintiff was driving his pickup truck in Burnaby when the defendant side-swiped him.
The plaintiff has spent most of his life working as a professional painter. Following a lengthy period of drug addiction and homelessness, the plaintiff managed to regain control of his life. In 2008, he started his own painting company.
Although the plaintiff said he observed no immediate symptoms or damage following the impact with the defendant’s car, later that same day “everything started seizing up,” referring to sudden pain his “neck, back and left shoulder.” The plaintiff subsequently sought medical treatment, and he was diagnosed with whiplash.
The plaintiff later sued the defendant for a variety of damages, including the loss of future income related to his painting business. At trial before Justice Maria Morellato of the British Columbia Supreme Court, the plaintiff testified that he was unable to return to work in the months following the accident. Since he lacked savings or another source of income, the plaintiff was forced to close the business and sell most of his painting equipment. During this time the plaintiff’s teenage daughter was also forced to move out of the plaintiff’s house because the plaintiff said “he could nolonger afford to support her.” The plaintiff said he did not resume painting full-time until 2016, approximately three years after the accident, but even now he is working for someone else.
The plaintiff maintained that his painting business “was growing every year and he expected that it would continue to grow if it were not for the Accident.” He explained that he was responsible for the entire business himself, as he was “not inclined to delegate work to sub-contractors without his direct involvement on site.” He said he regularly put in 12-hour days while running the business.
In rebuttal, the defendant argued the evidence actually showed the plaintiff’s painting business was in serious trouble even before the accident. The defense pointed to the plaintiff’s significant “tax debts” and his failure to file tax returns for several years. In effect, the defense said the plaintiff would have been forced to close his business due to his own mismanagement, and the accident played no role in what happened.
Justice Morellato said she was “not persuaded” by this aspect of the defense’s case. She credited the plaintiff’s testimony that he had managed to resolve his tax debts and that his earlier failure to file returns was not necessarily an indication his business was doomed to fail.
That said, the judge was also underwhelmed by the plaintiff’s claim that he was running a growing business at the time of his unfortunate injuries. Justice Morellato noted the plaintiff “had no employees and was working on his own,” and that his business was largely restricted to “painting heritage homes in the New Westminster area of Metro Vancouver.” According to his own testimony, the plaintiff only had one contract “actually lined-up at the time of the accident.” Even though the plaintiff said the accident took place during a “slow time” for painting, the Court nonetheless felt that after looking at the total picture, there was no evidence the plaintiff’s business was growing at a rate “beyond the inflation rate” for Canada as he claimed.
Ultimately, Justice Morellato awarded $36,000 in damages for the plaintiff’s “past loss of earning capacity” related to his accident. She declined to award any damages for future loss of earning capacity. She said the plaintiff had substantially recovered from his accident-related injuries and was presently “capable of running his own painting business,” even though he chose not to do so.
Building the Strongest Possible Personal Injury Case
There were other issues in this case besides the loss of the plaintiff’s earning capacity. As is frequently the case in auto accident cases, the plaintiff presented a claim for “non-pecuniary damages” to compensate him for pain and suffering. B.C. courts consider a wide variety of factors in calculating such damages. Here, Justice Morellato credited the plaintiff’s testimony regarding his neck and shoulder pain (and headaches) in the year following the accident. Given this and the other “psychological” injuries sustained by the plaintiff, the Court determined non-pecuniary damages of $70,000 was “appropriate in this case.”
In all personal injury cases, the Court is required to make detailed inquiries like the one Justice Morellato did with respect to the nature of a plaintiff’s losses. This illustrates the importance of building the strongest possible case before even setting foot in the courtroom. A qualified Vancouver car accident lawyer can assist you with this. At Preszler Law, we have extensive experience helping accident victims like you in gathering evidence and aggressively representing your interests in court. Contact us today to schedule a free, no-obligation consultation.