Claiming economic loss requires resolve

What happens when the seeds you plant don’t germinate, the chemicals you apply kill your crop, or worse, you’re injured and can’t operate your farm?

Assuming you can prove cause, effect and liability, you will eventually want to claim your loss.

Economic loss, as it is known, represents lost profit rather than just lost production. Cost savings and increases may follow the loss, which must be taken into account. As well, evidence must be provided to support your claim.

There are many pitfalls on this path:

  • Consult with experts as soon as possible. Saving a little money early on may cost you hundreds of thousands later. The purpose of compensation is to restore you to where you would have been had the loss not occurred. Facts trump everything when calculating this, and documented facts specific to your situation are much stronger than industry data or unsubstantiated statements.
  • Hope for the best but plan for the worst. You hope to settle quickly, fairly and without cost. That is the ideal, but it is best to take basic precautions from the start so that you’re protected if things go sideways.
  • Start immediately. Experts frequently have to deal with situations where the losses happened months or years ago with no records.
  • Start to document the loss as soon as it is evident. Make records of the loss, including photographs and sample analyses. Don’t be afraid to hire experts early to document cause, effect and loss. The costs of hiring the experts should form part of your claim.
  • Establish a base line for comparison. For example, compare the damaged area to unaffected crops on your farm. Aim to prove everything you claim. Expect that your word will not suffice, however just your case.
  • An expert on economic loss can help if you are not sure what to document or how to do so. If you are going to rely on their report or testimony later, here is where you set them up for success for a relatively small investment at the start.
  • It will take longer than you think to settle, maybe even years. The “other side” has reason to delay an already slow process, hoping exhaustion might make you settle for less.
  • Know your bottom line, which means having a well documented position on what you lost. Know the weak spots in your claim. Expect to consider offers. This means you will have to weigh options against the costs of carrying on and the uncertainty of what could happen in court if it comes to that.
  • Your experts are not your advocates. Their duty is to advise the court. They should be qualified, professional and impartial. The easiest way for a lawyer to dismiss an expert’s testimony is to discredit them for not being one of those things. It doesn’t matter how good the re-port is or how much it cost if the testimony is discredited, so don’t expect your expert to bend the facts to suit your case.
  • You have a duty to mitigate, which means you need to be able to demonstrate that you took reasonable steps to minimize the claim. Your expert, if involved early, can advise on this.
  • Look at the situation from the other side’s point of view. A good expert should be able to see the weaknesses in your case and advise on how you can strengthen your position.
  • The most obvious areas of loss are not always the biggest. A good economic loss expert will know the other places to look.

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