Non-pecuniary damages are awarded for pain, suffering and a loss of enjoyment in life that can result when an accident victim suffers a long-term injury that reduces their quality of life. Chronic pain, anxiety disorder, depression, and post-traumatic stress disorder (PTSD) are conditions which sometimes result from a serious car accident injury, and these injuries are often the basis of non-pecuniary damage awards.
In a recent personal injury trial, a jury awarded the plaintiff $600,000 in non-pecuniary damages, which the trial judge later reduced to the current ‘cap’ for this type of loss, which is $379,153. In addition to the non-pecuniary damages award, the plaintiff was awarded $840,000 for loss of income, $860,000 for future health care costs and $141,500 for special damages. The plaintiff had been injured in a motor vehicle accident and as a result, suffered serious and permanent injuries, including depression and chronic pain. And, the plaintiff was not able to work since the accident. After years of denying liability for the plaintiff’s injuries, the defendants admitted liability on the eve of the original trial, but the trial went forward to determine the amount of damages owed.
In McKnight v. Ontario (Transportation) (2019), the defendants appealed the original judgement and argued that the jury’s award of damages was excessive and the trial judge should have granted a mistrial. The defendants stated that the chronic pain, depression and anxiety that the plaintiff had alleged he was suffering actually resulted from a relatively minor accident, and the jury only awarded the substantial amount of non-pecuniary damages because they were inflamed by the plaintiff’s complaints that he was mistreated by the defendants’ trial lawyer. The defendants also asserted that the plaintiff’s psychological issues were caused by psychological trauma and issues that occurred before the accident, as well as stress from the lawsuit, and not entirely due to the car accident injuries.
Background and Findings
The circumstance in the original trial that was the focus of the defendants’ complaints is the fact that the plaintiff stated, during his cross-examination and at trial, that the defendants’ counsel had yelled at him and asked him about his step-father’s suicide. The trial judge ruled that the plaintiff’s testimony was not admissible (since it risked making the defendants’ lawyer a witness); however, the plaintiff’s treating psychiatrist re-introduced this evidence when he testified that the lawsuit was causing the plaintiff stress which was aggravated because the plaintiff felt mistreated and abused by the defendants’ counsel. The psychiatrist also stated that defence counsel’s actions adversely impacted the plaintiff’s psychological condition.
The defendants objected to the psychiatrist’s statements and made a motion to declare a mistrial. However, the trial judge refused to declare a mistrial and asserted that, although this evidence should not have been presented and was prejudicial to the defendants, any prejudice can be alleviated by a mid-trial instruction to the jury. At this point, the trial judge instructed the jury that the statements made by the plaintiff and his psychiatrist about defence counsel’s conduct are inadmissible and should be disregarded. The judge also informed the jury that litigation can be stressful for the parties involved and litigants frequently have difficult relationships with opposing counsel, nevertheless, interactions between one party and opposing counsel are not relevant to the issue being decided. And, several times during the trial, the trial judge cautioned the jury that it must assess the issue of damages “without sympathy or prejudice” and damages are “intended to be compensation and not a form of retribution against the defendants”.
The Appeal Court disagreed with the defendants that the trial judge erred in law by refusing to grant a mistrial. Mistrials are a remedy of last resort and the conduct of the defendants’ lawyer did not reach the level of causing an injustice that could only be resolved by a mistrial. The Appeal Court found that the matter was addressed appropriately by a mid-trial instruction to the jury. Further, the Appeal judge pointed out that defendants had, themselves, raised the issue of the plaintiff’s response to his step-father’s suicide in the original trial and also suggested that the plaintiff’s psychological conditions were associated with this traumatic event and also partly caused by stress from the litigation.
During the original trial, the trial judge granted the plaintiff’s motion to amend their Statement of Claim to reflect the increase in damages awarded, at $2,079,153, and adjust for the adjustment due to the cap on non-pecuniary damages. The defendants argued that they conducted their litigation on the basis of the original amount claimed and were prejudiced when the judge changed the amount and further, the trial judge was in error when he granted that amendment.
The Appeal judge again disagreed with the defendants and found that the trial judge was in the best position to assess potential prejudice and there was no reason to believe the defendants would have conducted their defence any differently if the Statement had been amended before the trial.
The Appeal Court dismissed the ground of appeal and allowed the awarded damages to stand.