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Recent Damages Decisions
Published in the June 2009 issue of Transportation Notes - View Article
There has not been much in the way of final decisions in the transportation sector over the last four weeks, but the highest appellate courts in Ontario, British Columbia and Alberta have issued judgments in cases arising out of automobile accidents, each of which is likely to be the final word in the case in question. The Ontario case does raise—but does not answer—a much debated issue of legal policy and the British Columbia case provides an example of how far wrong a self-represented litigant can go. The Alberta decision is almost entirely a matter of assessment, although it contains comments concerning the importance of a well reasoned assessment at the trial level.
In McIntyre v. Docherty the issue was recovery of damages for housekeeping losses. The plaintiff was injured in an automobile accident and claimed that, as a result, her ability to perform housekeeping tasks was impaired. She was still able to do some tasks, but not so efficiently as she had been able to previously. Other tasks were undertaken by relatives without compensation. She also led evidence that her ability to do housekeeping tasks in the future would be prejudiced.
The law respecting compensation for “loss of housekeeping” has developed over the last 30 years. Some of the solutions proposed for the problems identified have been remarkably complicated. There is a simple rule for one category of loss: if the injured person is unable to perform housekeeping tasks by reason of an injury and actually employs and pays a third party to perform those services, the amount paid to the third party may be recovered as special damages. However, difficulties appear when we consider tasks which are left undone, tasks which are performed but inefficiently and with pain and tasks which are performed by third parties without pay.
Of these latter scenarios, the most interesting is probably the first. How should the law treat compensation for tasks which are left undone? The injured party may suffer loss in two forms: loss of self esteem and loss of the comforts of a well-tended home. The common law generally considers that these should be compensated as non-pecuniary damages. A debated issue is the extent to which it is proper to consider what it would have cost to have the work done by a third party. The present law in Canada is marked by doctrinal clarity and practical disregard of doctrine. As a matter of doctrine, the cost of replacement labour is not the measure of the loss, but may be considered in determining the loss. As a practical matter, courts tend to take the replacement cost as the measure of the loss, thus converting an item of non-pecuniary damages to one of pecuniary loss. This ignores the received doctrine but some would defend it on the basis that the presently received view of the law in Canada results in unfairly penalizing the house-maker as compared to other workers. Why, it is argued, should we not treat housework on a par with other forms of employment for the purposes of damage awards.
The Ontario Court of Appeal, in the McIntyre case, seems to be on the verge of weighing in on this debate, but pulls back with the explanation that the question need not be answered for the purposes of this appeal. The claim was not for housekeeping left undone, but for housekeeping done inefficiently or by family members. Accordingly, the more interesting question will have to wait for adjudication in a case in which it is squarely raised.
In the case of Pett v. Pett the Court of Appeal for British Columbia was faced with a trial decision which had reduced entitlement to damages for future loss of income to a figure below that suggested by the experts for both the plaintiff and the defendant. The plaintiff suffered injury in an auto accident while still in his teens. He had left school quite early to follow a family tradition of labour in construction. He showed signs of a good work ethic but had relatively little record of employment. The economists who testified estimated future losses of between $470,000 and $300,000. The trial judge, with little explanation but apparently affected by his conclusion that the plaintiff’s limited education was a major factor to be taken into account (he commented that this was not the fault of the defendant) as it would be expected to limit the plaintiff’s employment prospects, reduced the award to $120,000. The Court of Appeal found this unreasonable and increased the award to $225,000.
In Papadopoulos v. Borg the Court of Appeal of Alberta dealt with a self represented litigant in a personal injury action. Mr. Papadopoulos felt he was entitled to insist of payment of $49.9 million but stated—while presenting his case in court—that he wished to settle. He relied on high authority, stating: “God requires of his mankind a tithe of 10 percent. I’m in a position where I’m willing to take the example that God has put forth and settle for 10 percent. Is that not fair?”
The Court was not persuaded and Mr. Papadopoulos lost his bid for fortune.
McIntyre v. Doeherty, 2009 ONCA 448
Pett v. Pett, 2009 BCCA 232
Papadopoulos v. Borg, 2009 ABCA 201