By Richard Bogoroch
October 22, 2004
A discussion of damages would be incomplete without a reference to the series of three Supreme Court of Canada cases (known as the “trilogy”) which have provided a baseline for the assessment of personal injury damages for more than twenty-five years. Perhaps the most significant contribution of the trilogy, consisting of Teno v Arnold1, Thornton v School District No. 572 and Andrews v Grand & Toy3, is the establishment of an “upper limit” or “cap” for non-pecuniary general damages.
Mr. Justice Dickson, who gave the majority opinion in Andrews v Grand & Toy, put forward the following rationale for the “cap” or “upper limit”:
“There is no medium of exchange for happiness. There is no market for expectation of life. The monetary evaluation of non-pecuniary losses is a philosophical one and policy exercise more than a legal or logical one. The award must be fair and reas5onable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional.”4
Mr. Justice Spence, who authored the majority opinion in Teno v Arnold, echoed these sentiments when he stated that:
“There remains the assessment of the quantum of non-pecuniary damages. These damages are spoken of as ‘compensation’ for pain and suffering, loss of amenities of life, loss of expectation of life – a grant of largely subjective considerations the very naming of which indicates the impossibility of precise assessments.The real difficulty is that an award of non-pecuniary damages cannot be ‘compensation’. There is simply no equation between paralysed limbs and/or injured brain and dollars. The award is not reparative, there can be no restoration of the lost function.”5
In his paper entitled, Special and General Damages Update6, presented at the Law Society of Upper Canada lectures held on June 11 and 12, 1998, Mr. Roderic G. Ferguson, Q.C., states that the trilogy was initially regarded with great alarm by the Bar, especially the Plaintiffs’ Bar. He comments that with the passing of time, however, thoughtful lawyers began to shift focus and many now regard the trilogy as having revitalized the personal injury damages practice. In Mr. Ferguson’s view, counsel began to see that the real message of the trilogy was not that general damages should be “fair” but that special damages (pecuniary losses) should be assessed in a manner that is “full”.
In his paper, Roderic Ferguson Q.C. also refers to another reaction of lawyers to the “cap”. He describes this reaction as “innovative thinking in transforming non-pecuniary heads of damages into pecuniary ones”. Into this category he places claims for loss of competitive advantage, loss of homemaking, the loss of shared family income and the “Lost Years” claim.7 After an introduction of the concept of the “Lost Years” and its development in case law, we turn to a significant recent decision of the Ontario Superior Court of Justice (confirmed by the Court of Appeal), in Crawford v. Penney, which provides further insight into the various facets of a complex damages award where there has been a catastrophic injury. The significant and reasoned approach to damages in Crawford v Penney8 stands in stark contrast to the approach to awards in fatal accident cases where the Court continues to struggle with the value to be accorded for the loss of a loved one.
* I acknowledge, with thanks, the substantial contribution of Ms. L. Goldstein and Ms. E. Holland in the preparation of this paper.
1 2 S.C.R. 287
2 2 S.C.R. 267
3 2 S.C.R. 229
6R.G. Ferguson Q.C., “Special and General Damages Update”, Special Lectures 1998, Personal Injury Law: Current Practices and Emerging Directions
7R.G. Ferguson Q.C., “Special and General Damages Update”, Special Lectures 1998, Personal Injury Law: Current Practices and Emerging Directions at p.20-8
8Crawford (Litigation guardian of) v. Penney,  O.J. No. 89 (S.C.J.), aff’d,  O.J. No. 3669 (C.A.).
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