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TYPES OF DAMAGES - For personal injuries - Calculation - Contingencies

Tuesday, June 05, 2018 @ 8:30 AM  


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Appeal by the defendant hospital and nurse from the award of damages for future loss of income and the award of costs. In September 2008, the plaintiff Sarah Butler was diagnosed with hypotonic cerebral palsy. Her condition was caused by the hospital nurses' negligence artificial rupture of her members at the birth of her and her twin brother in January 2007. The condition caused a permanent, serious impairment of Sarah's fine motor skills, speech, cognition, learning and behaviour. Her disabilities required physiotherapy, speech-language therapy, occupational therapy and various pieces of equipment. The appellants admitted that they fell below the standard of care at the beginning of trial. With respect to damages they argued that some of Sarah's impairments were not entirely caused by their negligence and that the claims under various heads of damages were excessive. The trial judge determined that the birth injury was the sole cause of Sarah's injuries. He awarded the respondents damages of $5,586,393, which included $1,881,846 for future loss of income. In a separate decision, he awarded the respondents costs of $2,201,259. The defendants argued that the future income portion of the award should be reduced to $821,109. They also sought leave to appeal the fee portion, $1,503,466, of the award of costs.

HELD: Appeal dismissed. The trial judge made no error. There was no reason to interfere with the exercise of his discretion in the assessment of damages or in his determination of costs. The trial judge's finding that there was a real and substantial probability that Sarah would have completed college, but not university, and would be employed fulltime if not for her injuries was reasonable. It was arguable that an inference was available that both positive and general contingencies could be drawn from the evidence. It was open to him to conclude that temporary absences from work would be offset by benefit programs and he was not obliged to make a further deduction for non-participation in the workforce. The costs award was not clearly wrong. The trial judge was not required to adopt a weighted average of partial indemnity and substantial indemnity costs and costs did not have to be measured with exactitude.

Butler (Litigation guardian of) v. Royal Victoria Hospital, [2018] O.J. No. 2281, Ontario Court of Appeal, H.S. LaForme, G.J. Epstein and G.I. Pardu JJ.A., May 1, 2018. Digest No. TLD-June42018005