This is a reproduction of an article published by Rikin Morzaria and John McLeish in the Lawyers Weekly. For a link to the original, click here.
A number of cases decided in the past five years illustrate Ontario courts’ willingness to give multimillion-dollar damages awards to seriously injured plaintiffs. In each case, the plaintiff suffered a catastrophic injury. While these injuries are not a new phenomenon, the amounts of the awards are unprecedented and appear to be increasing.
In the 2007 case of Marcoccia v. Gill, Robert Marcoccia suffered a severe traumatic brain injury in a motor vehicle accident. At the time of the collision, he was 20 years old and had just finished grade 12. The injuries to the frontal and temporal lobes of his brain left him with severe behavioural disabilities, as well as left-sided hemiparesis. Because Marcoccia was unable to effectively manage his emotions and impulses, he was unable to live independently. The jury accepted that he required care 24 hours a day, seven days a week, and would never be able to work. It assessed his damages at $16.9 million.
In the 2008 case of Gordon v. Greig and Morrison v. Greig, Derek Gordon and Ryan Morrison were passengers in a pickup truck that swerved to avoid an oncoming car, and then rolled over. Gordon suffered a catastrophic brain injury that left him without bladder and bowel control, senses of smell, taste and hunger, and loss of temperature control and sexual function. Morrison suffered a spinal cord injury that left him with paraplegia. Justice Bruce Glass awarded Gordon damages of $11.5 million and Morrison damages of $12.3 million.
Most recently, in MacNeil v. Bryan, Justice Peter Howden awarded $18.4 million in what is believed to be the largest personal injury award in Canadian history. Katherine-Paige MacNeil suffered a catastrophic brain injury, including the loss of some frontal lobe brain mass and severe hemorrhaging in her brain. She also suffered several lumbar spine fractures and other orthopedic injuries. Justice Howden accepted that the injuries left MacNeil, who was 15 years old at the time of her injury, unemployable and dependant on around-the-clock supervision.
None of these cases articulated new legal principles for the quantification of damages. So what accounts for the increased value of the damages awards? A review of the decisions reveals that there are at least two factors at play.