I pointed out in an earlier blog that personal injury damages awards, at least in Ontario, have been pushing toward the 20 million mark. Several other cases in the last few years confirm that courts in Ontario are prepared to make these extremely large awards, where the injury is catastrophic and the evidence supports the award.
In an article which appeared in Lawyers Weekly, lawyers from the leading personal injury firm McLeish Orlando in Toronto discuss a case with a damages assessment of $16.9 million, a case with damages of $11.5 million, and a case with damages of $12.3 million. Most recently, in MacNeil v. Bryan an award of $18.4 million was made. This is thought to be the largest award for personal injury in Canadian history. All of these cases involved either catastrophic brain or spinal cord injury – devastating neurological injury.
All these cases involved the application of well-established legal principles for assessing damages. No new principle was developed. Authors McLeish and Morzaria attribute the increase in awards to the increasing cost of future care, and to recognition of the cost of guardianship and management fees.
As sophistication in the understanding of neurological injuries has advanced, not just the number of hours involved in attendant care is being awarded, but attendant care is being awarded at different levels of care.
For example, in addition to a personal support worker, a brain impaired client may also benefit from care by a rehabilitation support worker, who assists with involving the client in the community and in volunteer pursuits. This kind of support is more expensive than personal support. The additional cost for the rehabilitation support worker made up almost $4.5 million of the $15 million cost of future care in the MacNeil case.
The fact that the cost of healthcare is accelerating at a rate of inflation greater than the general rate of inflation, also has an impact in increasing the cost of care over the lifetime of a critically injured person.
The second factor increasing awards is the cost of guardianship and management fees. These become relevant when the injured person is not able to manage their financial affairs and investments. Management fees have been awarded in amounts as large as $800,000, and guardianship fees and amounts as great as $400,000 in recent cases.
These developments have taken place in Ontario. In my view, many judges in Newfoundland would have difficulty thinking of numbers this large. It is true that the cost of providing care in Newfoundland and Labrador is less than what it is in other parts of Canada. But the time is surely coming when in cases where the injury is catastrophic and the evidence supports it, judges in Newfoundland will follow the established law of personal injury damages assessment and make multi-million dollar awards.