1
Law 12 Tort Law Ms. Ripley
The Judgment and Civil Remedies (All About Law. Gibson, pp.321-327)
After the trial, the judge delivers a judgment. In Small Claims Court, the judge often gives an oral judgment while all the parties involved are still present. In higher courts, the judge usually needs some time to review the evidence and to consider the case itself and the relevant law. The judge is then said to be "reserving judgment"; that is, delaying a decision until all the evidence has been examined.
Civil Remedies
Damages for the plaintiff's injury or loss are the remedy most often awarded in tort actions. The intent is to return plaintiffs, as much as possible, to the same position they were in before the loss or injury occurred. In the case of injury (e.g., paralysis), no amount of money can adequately compensate victims, but a major purpose of awarding damages is compensating plaintiffs for the cost of future care and future loss of income. Courts consider these factors, if applicable, and refer to past cases and precedents to determine awards.
There are five types of damages, and plaintiffs may be awarded one or more of them.
General Damages
General damages are damages that cannot be calculated easily or precisely and require a judge's or a jury's discretion. There are two main categories:
· damages for loss of income and future earnings and the cost of specialized future care
· damages for pain and suffering and for loss of enjoyment of life
For loss of income, the judge must consider what the plaintiff was earning at the time of the accident and what he or she would earn in the future. The longer the injured plaintiff is expected to live, the greater the compensation. If the victim has a job or had definite plans to enter a specific profession or trade, then the average earnings for that occupation may be used. The settlement must, moreover, be fair to both the plaintiff and the defendant.
Determining adequate compensation is extremely difficult when the injured plaintiff ~is very young or has not yet entered the workforce. For example, if you were injured, would you be able to say with certainty, what you intend to do after high school? Are your school marks high enough to enter college or university or a particular trade? Have you seriously thought about what type of employment you intend to seek? If so, who knows about these decisions, and who could testify on your behalf at a trial to support your claims if you were an injured plaintiff?
Costs for future care cover professional help, equipment, facilities, and medication necessary to assist the injured plaintiff in performing daily activities. While damages can be difficult to determine, placing a price on pain and suffering is even more difficult. What is the loss of enjoyment of life worth to a person permanently injured in an accident? Should an athletic, socially active youth be given more money for loss of enjoyment of life than a quiet, less active one? Money cannot always restore what has been injured or lost; however, it can provide substitutes for pleasures that are no longer possible. Compensation can, for instance, make it possible for an injured plaintiff who can no longer skate or ski to enjoy a winter vacation.
The Supreme Court of Canada Trilogy
Because of highly publicized American legal cases in which plaintiffs are awarded millions of dollars, many Canadians feel that they will receive equally high awards for personal injury lawsuits. However, this is not the case. Canadian courts take a more cautious approach in determining damages.
In three precedent-setting decisions in 1978, the Supreme Court of Canada set out the factors to consider for awards for pain and suffering in very serious cases-those resulting in severe, life-long physical incapacity. The court set $100 000 as maximum compensation for pain and suffering in most cases, excluding "exceptional circumstances," based on the severity of injuries and the victim's disability. In today's dollars, this amount is roughly worth between $275 000 and $300 000.
Two of the three cases were Thornton u Prince George School District No. 57 (1978) and Arnold u Teno (1978). In the first case, Gary Thornton, a high school student, was injured during a gymnastics class, leaving him a quadriplegic (paralyzed in all four limbs). He had minimal use of his hands and some use of his arms up to his shoulders, but he would require constant care for the rest of his life and his life expectancy was 54 years. His mental faculties were unimpaired. He and his parents sued the teacher and the school board, and the Supreme Court of Canada ultimately awarded Thornton $810000.
In the second case, Diane Teno, a four-year-old child, was hit by a car while crossing the street to buy an ice-cream cone from a vendor in her neighbourhood. Her speech, physical abilities, and mental capacity were left severely handicapped, and she would require full-time assistance to perform even ordinary tasks for the rest of her life. Her life expectancy was 67 years. On the child's behalf, the parents sued the driver of the car, the ice-cream vendor, and the company for whom he worked. The Supreme Court of Canada ultimately awarded the Tenos $540 000.
In each of these judgments, along with another case involving a quadriplegic young adult Andrews v Grand and Toy Alberta Ltd. (1978)-the Supreme Court established the ceiling of $100 000 for pain and suffering and loss of enjoyment of life.
For Discussion
1. What factors do the courts consider when awarding damages for pain and suffering?
2. In the case of permanent disability, a key issue for courts to determine is whether the victim's future care should be in an institution or a modified home. Although home care is preferable, it is more expensive. In a chart, outline the advantages and disadvantages of an institutional versus modified-home environment.
3. Discuss the merit of having a ceiling for pain and suffering in the 21st century.
Tran v Financial Debt Recovery Ltd.
(2000) 193 D.L.R. (4th) 168 Ontario Superior Court of Justice
The plaintiff, Mark Tran, had a student loan that remained unpaid. He graduated from the University of Toronto with a commerce degree in 1996. Collection of Tran's loan had been transferred from the original lender to the defendant collection agency. Tran questioned the amount owing and refused to make any payments until the issue was cleared up The defendant agency and its employees then began a planned campaign of harassment. They lied about their identities, Tran at work, threatened him with physical harm, and repeatedly telephoned Tran and other employees at his office. After receiving seven abusive calls within 30 minutes, the receptionist threatened to call the police if the callers didn't stop. The agency also lied to Tran's employer, claiming that he was looking for work with a competitor, that there was a court judgment he had not paid, and that he was financially irresponsible.
As a result of these events, Tran's employer did not give the plaintiff his annual raise or bonus. Tran, unrepresented by counsel, brought an action for $15 000 for damages to his reputation, for humiliation and emotional suffering, and for economic loss. The trial judge found in Tran's favour and awarded him $25 000 plus court costs.
For Discussion
1. Briefly summarize the main issues in this case.
2. How was Tran's reputation damaged from this incident?
3. Tran based his action on three factors: his loss in income; the time he spent daily doing exercise and meditation to relieve the stress caused by the defendant; and a modest amount to compensate him for the loss of weight and humiliation caused by the defendant. Although he felt his damages were about $40 000, he reduced that amount to $15 000 because he did not want to appear unreasonable. What factors do you think the trial judge took into consideration in awarding $25 000 plus court costs?
Special Damages: Special damages compensate for out-of pocket expenses already spent before trial because of the injuries suffered. Although they are not essential, it is helpful to produce receipts for these expenses. A plaintiff may be hospitalized after an accident, lose income, and/or pay expenses for ambulance service, drugs, therapy, rehabilitation, car repairs, and so on. Lost wages between the accident and the trial are also special damages because they can be calculated exactly.
Punitive Damages: Punitive damages (exemplary damages) are additional damages awarded to punish the defendant for bad, insensitive, or uncaring behaviour. The intention is deterrence: to discourage both the defendant and the public from committing similar actions. However, punitive damages are seldom awarded in cases where the defendant has already been punished by the criminal courts for the same action. They are most commonly awarded for intentional torts, discussed in Chapter 12.
Aggravated Damages: Aggravated damages are similar to punitive damages. These damages are awarded when the defendant's behaviour is so outrageous, it harms the plaintiff. For example, the plaintiff suffers serious emotional shock or suffering because of the defendant's behaviour. While punitive damages are intended to punish or deter defendants, aggravated damages compensate the plaintiff for the defendant's outrageous conduct. Assume, for example, that a drug company markets a morning-sickness pill that is later revealed to cause birth defects. If investigation shows that the pill was not adequately tested, the company could be assessed for punitive damages. If, on the other hand, investigation reveals that the company executives knew the pill could cause birth defects but marketed it anyway, the court could award aggravated damages because of the company's outrageous behaviour.
Nominal damages: Nominal damages are awarded when a -Judge wants to indicate support for a plaintiff and awards a small sum, such as $1 to $100. Such an award suggests that, although the plaintiff has suffered little or no loss or harm, he or she has won a moral victory. If, for example, someone trespasses on another person's property but does not actually damage the property, nominal damages may be awarded to tell trespassers that they have affected the owner's right of property use.
Injunctions: In a small number of civil actions, the plaintiff is not interested in cash compensation as a remedy. Suppose that Jack and Arnie are band members who rehearse late each evening at their home. Their neighbours, the Harrises, feel that their right to quiet enjoyment of their property is being disturbed. The Harrises might ask the courts to prevent the continuation of late-night
Dunne v. Gauthier 2000 BCSC 1603 British Columbia Supreme Court
The plaintiff, David Dunne, was a school-bus driver who drove the four children of the defendant, David Gauthier. One November morning in 1996, the children boarded the bus. One child told Dunne that they would not be taking the bus home. However, at the end of the day, three of the four children caught the bus. Dunne didn't ask about the fourth child, a six-year-old boy, nor did the Gauthier children say anything about their brother. About 60 children were on the bus for the ride home.
Shortly after school dismissal, Gauthier heard a recorded phone message from his young son, upset about missing the bus. The father then phoned the school and said he'd break both of the driver's legs if his son was not on the bus when it got home. The school arranged for a ride home for the boy and called the boy's home with that news. When the bus arrived at the Gauthier home, however, the defendant entered the bus, tore the telephone from Dunne's hand, and threw it out the bus door. Then, Gauthier put his arm around Dunne's neck, twisted it, and forced the driver down while he was
still strapped in his seat belt. Fifteen children were still on the school bus and witnessed this attack. As Gauthier left the bus, he told Dunne that if he ever saw him on the road, he would "take" him and the bus "out." Dunne completed his route and then went to hospital for emergency care. He sued the father for personal injuries, psychological and emotional problems, and depression, and was awarded $10 000 general damages, $5000 aggravated damages, $3425 for lost wages, and $1600 special damages.
For Discussion
1. In his defence, Gauthier claimed that the plaintiff's reaction to the assault was unreasonable and that he shouldn't have been so affected by what happened. What argument could the plaintiff make to counter this claim?
2. Gauthier also argued that he was broke and couldn't pay any award, even if the court found in the plaintiff's favour. Should this be a concern of the court in reaching a judgment? Explain.
3. What factors do you think the court considered in awarding aggravated damages?
rehearsals by requesting an injunction-an order for a person to do or not do something. The courts could respond by issuing a court order to Jack and Arnie, restricting the rehearsals to reasonable hours.
Similarly, a factory that is dumping its waste into a lake, thus polluting it, might be subject to an injunction requiring the owners to stop this activity. The most common use of injunctions is to require striking workers to return to work. Failure to comply with an injunction might result in a charge for contempt of court, followed by a fine or jail sentence.
Costs
If the plaintiff wins the case, the judge must determine whether court costs will be allowed. Usually, the losing party is required to pay the legal fees and other expenses of the successful party. These costs are based on a fee schedule published by the courts and vary somewhat by province. The winning party prepares a bill of costs and gives it to the losing party for payment. However, the amount the judge awards may cover only part of the costs, especially for a long trial in a higher court. The rest might have to come from the award of damages, leaving little for the plaintiff.