Week 4: Quantum Duty to Rescue
QUANTUM OF DAMAGES
This is the case on damages in Canada. You will read that the damages awards in Canada
prior to this case were usually extremely low. General damages for pain and suffering were
traditionally less than $10,000.00 even where a wrongful death was at issue.
I know most of us hear about the coffee spill case where the plaintiff was awarded millions
of dollars for something that seems fairly minor, but that was an American case, and you
also didn’t know that “compensation” wasn’t the reason that award was so high.
But even in Canada, when we hear of huge monetary damages awards, most of the money
is to pay for medical expenses and special needs occasioned by the long-term injuries
sustained by the plaintiff.
As I have stated, pain and suffering damages were notoriously low in Canada, but in
Andrews, we can see the Alberta Court of Appeal was unjustifiably frugal when considering
general damages for the cost of future care for a young man that would now be disabled
for the rest of his life.
It is also instructive to see how the damages subheadings are nicely organized for ease of
One more thing: as you can see, courts grant some things you ask for and not others, so
the general rule is ask for everything, within reason.
SOME RULES AND DEFINITIONS ABOUT DAMAGES
Damages: a monetary award, damages always refers to money.
The purpose of damages in tort law: To put the plaintiff in the same position he or she
would have been had the tort not occurred.
This means to restore the plaintiff to his or her original condition, not improve that
So if the plaintiff was in a motor vehicle accident, and despite the seriousness of the
accident, was shown to have suffered, prior to the accident, every medical condition
alleged to have been caused by the accident, there will be no damages award. Kinds of Damages in Tort law:
General Damages: monetary award for things not easily quantified, includes both non-
pecuniary and pecuniary loss
Pecuniary: monetary losses, lost wages, devalued property, lost pension benefits, etc.
Non-Pecuniary: non monetary losses, eg loss of care and companionship, pain and
suffering etc., difficult to quantify
* Both general and special are based on compensation, to pay for injury or loss
Punitive: to punish, where defendant’s conduct is considered high-handed or outrageous,
the purpose of a punitive damages award is to deter that person from committing that
Exemplary: to make an example, where conduct is outrageous, judgment is to show
disapproval of defendant’s conduct, to deter the public
Nominal: small, not compensatory, can be a little as one dollar, *remember, even a
monetary award of $1,000.00 can be classed as nominal damages
- awarded when the case has been won, but no loss or injury,
generally applies to intentional torts, may be a way of court showing disapproval for a
law suit, i.e. trivial matter etc.
Punitive, exemplary, and nominal, are not compensatory
So what do you think would be the reason for granting a damages award in the millions of
dollars for some spilt coffee?
Aside from the issue of low damages awards in personal injury cases, there is a reference
by the Supreme Court of Canada to a big problem in the adjudication of disputes in court.
The court has to decide the case now, once and for all, and must make a monetary award
that they feel is justified on the evidence as it appears in the trial. There is no real way to
predict what is going to happen in the future, a person may need more care, they may
need less. That care may be more expensive, or less expensive. There might be a cure for
spinal injuries in the next few years. Or not. If a personal injury case dragged on long
enough, out of desperation, the plaintiff might seek and find other employment. This would
likely reduce a claim for anticipated lost wages. A plaintiff might die sooner than expected,
and this would also reduce many of the claims for damages. The court is compelled by the
law to make a determination of the unknowable, and grant damages awards based on the
most plausible predictions.
You will notice a reference to contingencies, and the court’s discussion of this thorny
problem. In a damages award, “contingencies” is a general heading that is always used to
reduce a damages award. The court observes it is not clear why this always results in a
reduction, since contingencies of life may just as easily make a plaintiff more needy in the
future. One of the objectives of the Ontario no-fault insurance scheme for automobile insurance
was to provide injured people with the things they needed for recovery and treatment
without waiting until the end of a law suit. It was not uncommon for cases to take 7 to 10
years to get to trial, and the injured plaintiff was without treatment or money until the case
was resolved. While it is not settled that this legislation has been a resounding success,
despite some of its other problems at least it appears the legislators were attempting to
deal with this problem. Note the court reference to this as a problem crying out for
ANDREWS v. GRAND AND TOY
Facts: π injured in a motor vehicle accident, defendant and employer partially liable
lost all function of legs, trunk, almost if not totally disabled, will require constant care
for entire life
still has normal mental functions, learning to drive, living on his own
21 years old at time of accident
At trial: trial judge made determinations about damages, def wholly liable, accepted π’s
evidence re damages
Court of Appeal:
reduced award, rejected π entitled to home care, saw this as most expensive
reviewed Court of Appeal J’t
Pecuniary loss: What the court of Appeal said - 1-61, “ wants to live at home
because it is “vastly the most expensive”
Other people similarly injured go and live with their families, π doesn’t want to live
with his mother - this is the most expensive alternative
Shouldn’t be granted compensation for every conceivable loss, live for next 45 years
at the expense of the def’s?
SCC says, home care isn’t a luxury, it is a reasonable position to take, “justice” requires it,
*** 1-62 ability to pay has never been regarded as relevant consideration in
assessment of damages
CA perspective is entirely from def’s point of view and monetary costs
1-63 - “ proper compensation for someone who would have been able to care for
himself and live in a home environment if he had not been injured OTHER DUMB THINGS THE COURT OF APPEAL SAID:
might be gov’t hospitals free of cost for such people
might take his $ award and blow it on something else (no fault scheme an attempt to
fix this) - irrelevant
CA reduced monthly care costs from 4k to 1k, then further reduced it
Look at bottom of p 1-64, reference to insurance availability, this is not to justify an
extravagant award, but removes the “cost to the defendant” consideration
life expectancy, look at statistics, reduce or adjust claims accordingy
contingencies of life, duration of expense, π might need to go into hospital,
expenses would be reduced, speculative, accept trial judge’s numbers, one of the
main problems with lump sum damages awards, don’t know what might happen in
the future to either increase or decrease expenses
duplication, i.e. there are some expenses that would be incurred anyway, cannot
recover for cost of basic necessities of life and still recover full wage loss, would
spend money living, double recovery
Non- pecuniary loss:
no medium of exchange for happiness - pg 1-70
policy and philosophy exercise
Previously: 3 ways of doing this
conceptual approach -- i.e. foot worth $x
personal approach - loss of human happiness by particular victim
functional approach - can’t compensate or replace happiness with money, but
money can provide “reasonable solice”
1-72, damages awards going up, courts need to set upper limits
traditionally, awards under this head of damages was under 10k
SCC sees this as the time to establish an upper limit, set at 100k,
* inflation, number over 200k, and there are higher awards
- in general, damages awards were notoriously low prior to this case, reasonable
compensation should be available, taking into account costs of future care, not
unreasonable to live at home etc. HARD CASES MAKE BAD LAW:
This phrase refers to the fact that when judges decide cases to resolve the dispute
between the parties before the court, they are also making a decision that could establish a
precedent for future decisions. For example, a judge might be faced with a plaintiff whose
plight is sympathetic. That judge may want to rule in favour of the plaintiff, but legal
principle does not appear to support such a decision. Finding legal principles that may be a
poor fit, just to satisfy an intuitive sense of fair play, may leave a precedent that either
appears to undermine the existing body of law, or sets a new principle that benefits less
deserving parties in the future. Sympathy ought not to enter into the decision making
process – it undermines the legitimacy of the existing system of case precedent.
The phrase can also refer to cases that just don’t easily fit with previous decisions. So we
are left with a decision that doesn’t seem to have any existing rules to rely on. The attempt
to resolve the issues using principles that don’t seem to match the case before the court
can again result in bad precedent, or apparently poor or arbitrary decision making.
In the next case(s), there are some existing rules about a duty to rescue, and a duty owed
to would-be rescuers, that don’t seem to be of very much help. Consequently, we have
included all three court levels of this action, to have a look at the various approaches to the
issues before the court.
I have set out the common law rules regarding rescues, but don’t be alarmed if they seem
a poor or inadequate fit.
DUTY TO RESCUERS / DUTY TO RESCUE
1. There is no duty at common law to rescue, unless there is a special relationship
that the law recognizes as imposing a duty.
This rule refers to the “by-stander”. If you are walking by and see someone drowning, you
are under no obligation to save them, unless you are in some legally recognized special
relationship, for example it is your child or someone under your care. A life guard or a para-
medic may have such a duty. If so, this duty would likely be imposed by statute.
2. If a rescue is commenced, there is no obligation to complete the rescue, unless
there is a special relationship that the law recognizes as imposing a duty.
The comments relating to rule 1 are equally appropriate for rule 2, there are no obligations
outside a special relationship that is recognized by law.
3. If a rescue is commenced, and the would-be rescuer is negligent in attempting the
rescue, and the attempt makes the situation of peril worse, the would-be rescuer
may be liable.
Now this is where things get a bit more interesting: A by-stander who attempts a rescue
can give up at any time, unless they have made things worse for the person in danger by
ceasing the attempt. In that case, they may attract liability. In order to attract liability, they
would need to be negligent in either the resc