Moore v. Brown, motorcycle accident case 
 In this personal injury case  an experienced personal injury lawyer in Victoria, British Columbia won an appeal of his client’s loss of profits claim.  The injury claimant, a geologist with a geological engineering company in Victoria, B.C.,  was riding his motorcycle when he collided with another  vehicle .  The claimant sustained significant injuries and  continued to have  problems up to the time of trial, three years after the accident. Early in the trial, the other driver admitted fault for the accident. 
On the appeal  there was no dispute that the legal principle to be applied  is that the injury claimant , to the extent it may be done by a money award, is entitled to be put into the same position he would have been in but for the motorcycle accident. The award for loss of profits should therefore reflect the difference between the proportion of the net annual profits to which he would have been entitled had he not been injured and the proportion to which he would be entitled in his injured state.  The Court of Appeal, in finding that the trial judge grossly underestimated the injury claimant’s loss of profits concluded that:

 “[67]         It was obviously within the province of the trial judge to consider and apply negative contingencies in assessing the loss of profit claim and the appellant does not suggest otherwise. What the appellant does argue is that an award predicated on an annual loss of profit of $3500 projected over 28 years and discounted for present value would have to be based on either or both a very substantial drop in the company’s net profits taken over an extended period of time or the appellant’s having only a very minor impairment in his working capacity over that time period. However, neither of those possibilities can account for the judge’s award because to do so would conflict with the findings he made in his assessment of the appellant’s future loss of employment income award. Implicit in the judge’s assessment of the appellant’s future loss of employment income award is a finding that the company would continue to be a successful geological engineering firm. Likewise, the judge’s explicit finding was that the appellant, as a result of his injuries, no longer has the capacity to work the hours he had previously worked.

[68]         For the reasons set out above, it is our respectful view that judicial interference is warranted in this case on the ground of palpable and overriding error in the judge’s loss of profits assessment.”

 The Court of Appeal was of the view that  the findings the trial judge made on the loss of employment income award  was sufficient to permit the Court to make an assessment of the injury claimant’s claim for loss of profits without returning the case to the trial court. This  avoided the further delay and expense of another trial.
The trial judge’s assumption that this productive  geologist could work for another 28 years doing desk work due to his injury was found to be incorrect.  Given the injury claimant’s profession and nature of the firm’s work, and in view of the judge’s finding about the reversal of the claimant’s work pattern from billable to non-billable hours, and his finding that the claimant’s prognosis was generally poor, the Appeal Court found that, ” it is impossible to conclude that the difference in the claimant’s diminished capacity to make a contribution to the company in his professional field would be offset indefinitely through his performance of office management work.”
The  appeal was allowed  and the court  set aside the award for loss of future earning capacity of $262,000  and replaced it with an award of $442,000. Posted by Mr.Renn A. Holness
Issue: Should an injury claimant be able to claim loss of profits from a business if the injury prevents them from working for their company?

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