What is the test for assessing future loss of profits in a medical malpractice case?

Ontario, Canada


The following excerpt is from Magnussen Furniture Inc. v. Mylex Ltd., 2006 CanLII 5309 (ON SC):

Her comments are similar to those of Mr. Justice Cory in the case of Canlin Limited v. Thiokol Fibres Canada Limited, (cited above) which comments also merit repetition at this time; “Why should not damages be awarded for the loss that contemplated future profit? The court, I believe, would be shirking its duty if it were to say that no damages should flow because of the difficulty of calculating and assessing such damages and that they are therefore too remote. An assessment of future loss of profits must, of necessity, be an estimate. Whether such damages are awarded will depend entirely upon the court’s assessment of the evidence put forward. The clearest case might base the loss of future profits upon past history of sales to the same or similar customers for same or similar items. It may be developed from evidence given by customers of a plaintiff as to what orders they would have given had the product not been defective over a period of time in the future which is deemed by the court to be reasonable and proper. The task will always be difficult but not insurmountable. It poses no greater obstacle to a court than the assessment of general damages in a serious personal injury claim.

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