Courts Must Put Victims First

“The fortunes of the world are in no way distributed equally.  Neither are the misfortunes…This is an action for damages. It’s complicated.”

– Justice Boswell, Pelletier v. Ontario 2013 ONSC 6898

Assessing how badly someone has been harmed in a personal injury case can be almost an impossible task for a judge or a jury. Few people come to the court with no pre-existing problems or a straightforward liability situation. But despite the complexities and uncertainties that are sure to be found in any given case, the Court is tasked with delivering justice. It is often forgotten, but the law is clear: victims should never be short-changed.

That said, assessing damages can be difficult for the Courts, especially when presented with various complicating factors. What if an injury has multiple causes, some related to the lawsuit and some not?  What if the actions of two or more individuals had contributed to the harm caused?  What principles can be applied so that fair damages will be awarded?

The first legal principle that must be applied to these complicated situations of liability and damages is that the victim should be made whole before any other factors come into play. In Ontario, this has been both the tradition and the law for decades.

Of course, this principle can be difficult to adhere to in certain complicated situations. For example, if a person with pre-existing impairments is injured because of another party’s negligence, it can be challenging to determine the amount of compensation needed to repair only the new harm and not the harm caused by the pre-existing condition.

It can get even more complicated if, in addition to both the accident victim’s pre-existing problem and their newly sustained injuries, more harm is inflicted by a someone who is not involved in the lawsuit. How does a judge or jury go about awarding damages in these complicated scenarios?

This challenging situation was dealt with by the Ontario Court of Appeal in Alderson v. Callaghan, 1998 CanLII 895 (ON CA).

Life handed Linda Alderson more misfortunes than anyone should be forced to bear. She suffered from psychological and emotional problems before being involved in a car accident, in which she sustained a brain injury that impacted her cognitive and emotional functioning. After the car accident, she was assaulted multiple times by her spouse and once by a stranger. These events likely caused additional brain injuries. But the lawsuit she pursued only concerned the injuries she sustained in her car crash.

The Defendant argued that most of Linda’s harm came from non-tortious causes (i.e., causes not related to the lawsuit). They suggested that the jury should only award her a fraction of the care she needed.

The Court found that this approach was incorrect, ruling instead that:

“…the jury should have been told that if Alderson’s overall condition resulted from the cumulative effect of the injuries sustained in the August 10 accident, the multiple beatings inflicted upon her thereafter, and her pre-existing psychological condition, she would nonetheless be entitled to full compensation [emphasis added] so long as the jury was satisfied, on a balance of probabilities, that the injuries sustained in the August 10 accident materially contributed to her overall condition.”

The Court also concluded that:

“The fact that Alderson’s overall condition may have been exacerbated by subsequent tortious acts does not relieve the defendant from full responsibility,” [emphasis added].

The law is clear. If the conduct of the tortfeasor is a material contributor to any impairment or dysfunction, they should be fully responsible for the damages the injury causes. The victim should never be shortchanged.

The law works similarly in Ontario with respect to liability.

For example, if a drunk bar patron who had been irresponsibly overserved by the waitstaff starts a fight with a bystander and causes them to sustain catastrophic injuries resulting in millions of dollars in damages, who will be considered liable? Assuming the aggressor has no assets to seize and the bar has a multi-million-dollar insurance policy, what happens if a jury finds the instigator of the fight to be more liable for the victim’s injuries than the establishment who failed to prevent the attack from occurring in the first place?

If each Defendant was only required to pay according to their degree of fault, the catastrophically injured victim would not be able to collect the full compensation they are entitled to because the person most liable for their damages would be unable to pay the millions of dollars they owe. Luckly, the law in Ontario is structured to make sure that doesn’t happen.

According to the province’s Negligence Act:

“Where damages have been caused or contributed to by the fault or neglect of two or more persons, the court shall determine the degree in which each of such persons is at fault or negligent, and, where two or more persons are found at fault or negligent, they are jointly and severally liable to the person suffering loss or damage for such fault or negligence, but as between themselves, in the absence of any contract express or implied, each is liable to make contribution and indemnify each other in the degree in which they are respectively found to be at fault or negligent.”

This means that each Defendant is liable for the entire extent of the damages incurred by the Plaintiff until they are made whole.

This could be viewed as injustice, wherein one party with a lower degree of liability is required to pay exponentially more than their level of negligence should suggest. However, the government of Ontario has long established that, in multi-party lawsuits, there are often not enough resources available to make victims whole while limiting each at-fault party’s payments to their proportionate contribution to the wrongdoing.

In other words, if someone must be shortchanged in a tort case, it should never be the victim.  This moral and legal principle may lead to one or more of the at-fault parties being disproportionately impacted. However, it ensures the victim will not be negatively impacted by one party’s inability to pay the price of their wrongful actions.

This article was written by Russ Howe.