Plaintiff Severely Injured in Two Accidents Can’t Recover Aggregate Non-pecuniary Damages in Excess of S.C.C. “Cap”

Broadbent v. Greater Toronto Transit Authority is another case involving a plaintiff injured in multiple accidents. Mr. Justice Moore had to deal with several interesting issues. He discussed the appropriate way to approach the assessment of damages in cases involving multiple accidents. He also concluded that a plaintiff cannot recover non-pecuniary general damages in excess of the Supreme Court of Canada’s “cap” (about $312,000), no matter how many times the plaintiff is injured.

(This January 15, 2008 decision was formerly posted on CanLII’s website as 2008 CanLII 1418 (ON S.C.), but for some reason, it has since been removed from the site. As a result, we are unable to link to the reasons of Justice Moore.)

The plaintiff had been involved in motor vehicle accidents in 1998 and 2001. It was conceded that the plaintiff had suffered significant brain injuries in both accidents. She also had various orthopædic injuries.

In both accidents, the plaintiff had been a passenger in a car.

The plaintiff had brought two separate actions. According to Moore J., the damages allegations in the two statements of claim were quite similar. The action relating to the second accident had proceeded to trial before Justice Moore and a jury. The earlier action (referred to in the reasons as, “the companion action”) had been settled but the settlement had not yet received court approval.

At the trial of the second action, Justice Moore learned, for the first time, that there had been a case management order made, requiring that the two actions be tried together. Because of the tentative settlement, no trial record had been passed in relation to the first action.

On the fifth day of the trial of the second action, Justice Moore directed that there be a voir dire “to receive and consider evidence touching upon the question of whether the injured plaintiff’s damages must be globally assessed and apportioned between two outstanding actions”.

It was made clear to His Honour, that the defendant in the second action intended to argue that to a considerable extent, the plaintiff’s current problems were attributable to the 1998 accident and were not the responsibility of the defendants in the second action.

The plaintiff, on the other hand, contended that if the jury were satisfied that the plaintiff’s present condition had resulted from the cumulative effect of the two accidents, she would be entitled to receive full compensation from the defendants in the second action, provided that it could be shown that that accident had “materially contributed” to the plaintiff’s condition.

Justice Moore reviewed in some detail the contents of counsels’ opening statements, as well as some of the evidence that had been led at the trial, in order to determine the direction that the trial of the second action would likely take when tried to its conclusion. He was satisfied that the evidence would show that the injuries suffered by the plaintiff in the two accidents had been “strikingly similar”. It appears that there was no real dispute about this. The question was, what to do about it?

His Honour reviewed the caselaw on multiple causation: Blackwater v. Plint, Misko v. Doe, Alderson v. Callahan, Hicks v. Cooper and others. The two competing approaches to the assessment of damages that he considered were these:

  1. Determine what the plaintiff’s condition was immediately before the second accident and then assess the damages resulting from that accident. To the extent that both accidents were found to have materially contributed to the plaintiff’s injuries and losses following the second accident, the plaintiff should be compensated in full in the second action. This approach was proposed by counsel for the plaintiff. Justice Moore rejected the suggestion, saying that it could lead to significant over-compensation or under-compensation for the plaintiff, because of the overlapping nature of the injuries.
  2. The Hicks v. Cooper approach: assess the plaintiff’s damages immediately prior to the second accident, then assess the plaintiff’s damages globally as of the date of trial (i.e., from both accidents) and subtract the former from the latter. This is the method that Justice Moore elected to employ.

His Honour then dealt with a specific issue that arose as a result of the Supreme Court of Canada’s “cap” on non-pecuniary general damages. (The cap, imposed in a series of three decisions in the late 1970’s, limits general non-pecuniary damages to a maximum of $100,000. Adjusted for inflation, that figure is now about $312,000.)

Counsel for the plaintiff submitted that it was open to the jury hearing the trial of the second action to find that the injuries suffered in the first accident warranted the maximum assessment of damages but that so did the injuries suffered in the second accident. This would have meant that the plaintiff could receive some $625,000 for non-pecuniary general damages. Counsel for the plaintiff argued that otherwise, if the damages in relation to the first accident were assessed at or near the maximum, the tortfeasor in the second accident might not have to pay any general damages at all. However, as Justice Moore noted, counsel for the plaintiff was unable to cite any authority in support of this position.

His Honour did not accept the plaintiff’s argument on this point. He pointed out that the “functional” approach to the assessment of damages, mandated by the Supreme Court of Canada, meant that “it is clear that the object of the exercise in terms of assessing general damages is not to maximize the amount of money that a plaintiff can extract from one or more defendants, but rather to provide solace and a measure of compensation for pain and suffering and loss of amenities to a maximum that is by no means intended to provide full compensation”.

Instead, Justice Moore applied a “devaluation” approach. Under this theory, the first accident had left the plaintiff “devalued”, in the sense of having caused a reduction in the “capacity to do things, to earn money and to enjoy life”. In the event that a second tort causes further devaluation before damages are assessed in relation to the first accident, the second tortfeasor would be responsible for that further detriment. His Honour said that a plaintiff starts from the trilogy “cap” as a maximum and her position is then devalued by subsequent accidents. The result is that it is impossible for a plaintiff to recover more than the trilogy maximum, no matter how many injuries she suffers.

In this case, the settlement of the “companion action”, arising out of the first accident, had not yet received court approval. Justice Moore said that the present action should not have proceeded to trial until approval had been sought and obtained for the settlement of the companion action. Accordingly, he directed a mistrial of this action and ordered counsel for the parties to appear before Sanderson J. to fix a new date for the trial together of both actions.

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