Wrongful Death. Employment Discrimination. Employment Termination. Personal Injury. Events like these all can result in legal claims made by the impacted individuals in a court of law. For the impacted individuals, recovery is not just about showing that the events are the cause of the losses incurred but also about calculating and presenting the losses to meet the standard of evidence in a court of law. Individuals in the Bahamas can face tremendous challenges as they sort through a host of complex issues related to damages recovery. Immediately upon determining that they will seek damages, an individual should consult and engage an attorney with experience in the area of damages recovery. The attorney should in turn hire a forensic accountant to assist in the recovery process.
Forensic accountants and individual legal claims
Forensic accountants may provide assistance in litigation, dispute resolution, and forensic accounting assignments. The forensic accountant may assist in matters that involve a pending or potential formal legal or regulatory proceeding before a “trier of fact” (for example, a judge, jury, arbitrator, or mediator) in connection with the resolution of a dispute between two or more parties. Litigation services are a type of consulting service which may be provided by a forensic accountant acting as a consultant (non-testifying expert) or as an expert witness (testifying expert). The services provided by the forensic accountant include fact-finding, damage calculations, document management, preparation of demonstrative exhibits, expert testimony and reporting, and any other professional services.
Overview of the Law of Damages Involving Individuals
Although many types of damages can arise from an alleged loss or injury, Bahamian law does not permit recovery in every case or for each element of damages. Rules of causation have been developed to ensure sufficient connection between the alleged event and the resulting damages. Recoverable damages generally flow naturally from the event in a direct and sequential fashion. Damages deemed too remote to have been reasonably expected are typically not recoverable.
The role of the forensic accountant in calculating damages involving individuals often relates to economic losses or special damages i.e. loss of earnings, fringe benefits, and any other income, as well as increased costs resulting from the incident, such as medical expenses and property damages. Special damages may include past losses and future losses. Past losses are measured from the date of the wrongful act, injury, or death to the date of trial or other reference date. Future losses are measured after the date of trial or other reference date and are discounted to present value using an appropriate discount rate. In the Bahamas damages are remedial and not retributive, the goal is to restore the individual to pre-incident, pre-injury status by calculating a monetary sum sufficient to compensate for the injury. Punitive, exemplary, and hedonic damages are not awarded in the Bahamas as they are in the USA. Two key principles in determining losses are reasonable certainty and mitigation:
Reasonable Certainty
The reasonable certainty principle is met when damages have been calculated using assumptions that are not speculative. To increase the likelihood that the forensic accountant’s opinion will be considered reasonably certain the use of sufficient relevant data to develop and support opinions should be used.
Mitigation
The plaintiff in a personal injury, employment termination, or employment discrimination case is expected to mitigate losses by making reasonable efforts to offset losses when possible.
Calculating Losses Involving Individuals
A forensic accountant’s focus is to calculate the damages involving individuals with objectivity, reasonableness and open communications. Within various parts of a time element calculation, there are numerous components that are open to varied interpretation. First, calculating the monetary amounts that would have been realized “but for” the damage incident, and then applying reductions for amounts actually realized or received. Next, calculating a further reduction for amounts that would have been received had the claimant mitigated damages and for personal consumption (in wrongful death matter). The loss period is generally the claimant’s work life expectancy or life expectancy and is projected over this period with appropriate growth factors applied. Finally, future amounts are discounted to present value dollar amounts to determine the total damages to the individual.
Helping individuals recover losses due to wrongful termination, employment discrimination, wrongful death, and personal injury has been a big part of Intelisys’ work for many years. When called upon we can respond quickly so the process of developing a comprehensive loss analysis can begin as soon as possible. To learn more about how Intelisys may be able to help you, please contact us today at info@intelisysltd.com or telephone 1 242 327 4001 or 3.
Ed Rahming, CA, CPA, CFF, CFE, MBA is the Founder and Managing Director of Intelisys, a boutique asset recovery firm based in the Bahamas. The firm specializes in the provision of corporate recovery and cross border insolvency, litigation support, and debt recovery services.
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