When can I sue a Negligent Driver for Aggravated and Punitive Damages?

Posted by Stevenson Whelton MacDonald & Swan
May 02, 2019

The vast majority of car accidents, motorcycle accidents and other automobile accidents are preventable and result from careless or negligent actions.  The leading causes of motor vehicle accidents are distracted driving, drunk driving, speeding and driver fatigue.  Any of these actions can result in fines and criminal charges, and under the Canadian justice system, it’s the role of the criminal courts to punish a person who broke the law, which includes driving offences involving criminal harm to another person.

All too frequently, innocent accident victims suffer life-changing injuries or death as a result of preventable and negligent driving actions.  When this occurs and whether or not the responsible driver was criminally charged in connection with the accident, accident victims and their families are entitled to bring a lawsuit against the at fault driver.  The role of civil actions, including personal injury lawsuits, is to resolve disputes, such as bankruptcy or child custody, and to obtain compensation for accident victims and others who suffered losses as a result of a negligent action.

Under Canadian law, civil actions are generally not intended to punish defendants –  we rely on the criminal courts to serve this role.  Nevertheless, a plaintiff may be entitled to punitive damages when the defendant committed an actionable wrongful and egregious act against the plaintiff, and was not suitably punished in a criminal action.  And, aggravated damages may be awarded to compensate a plaintiff for aggravated injury and mental distress.

Car Accident Victim sues Impaired Driver for Aggravated and Punitive Damages

A car accident injury lawsuit arose after the plaintiff, Mr. Ngo, sustained physical and psychological injuries in a car accident caused by a drunk driver. The plaintiff asserted that the defendant’s impairment caused the accident and his injuries.  He claimed damages to compensate for his losses, as well as punitive, exemplary and aggravated damages.  In the action, Ngo v. Miller (2018), the defendants brought a summary judgement motion to have the claims for aggravated, punitive and exemplary damages dismissed, although the defendants did not contest the other losses claimed by the plaintiff.  

The defendant, Mr. Miller, was found to have a blood alcohol concentration well over the legal limit at the time of the accident, and police charged him with several criminal offences, including impaired operation of a motor vehicle causing bodily harm, ‘over 80’, and dangerous operation of a motor vehicle (dangerous driving) causing bodily harm.  The defendant, who had a previous conviction for drunk driving, was ultimately convicted of impaired driving causing bodily harm and was sentenced to two years in jail.  Mr. Miller passed away before serving out his sentence, so the civil action was being brought against his estate.

During the motion trial, the plaintiff’s treating psychologist gave evidence that the defendant suffered mental distress and was frequently ruminating about the defendant’s impaired driving action.  Further, the defendant’s actions, specifically, with respect to his drinking and driving, worsened the plaintiff’s anxiety, depression, nightmares and related psychological issues.  

On the question of whether punitive, aggravated or exemplary damages can be awarded when the criminal courts have already dealt with the defendant’s actions, the judge referred to McIntyre v. Grigg, (2006) and Cobb v. Long Estate (2017).  In McIntyre, the court decided that there was no legal basis to award the plaintiffs separately for aggravated damages and insufficient evidence to find that the plaintiff’s psychological damage increased because the defendant was impaired.  In Cobb, which was similarly a drunk-driving case, the court dismissed the plaintiffs request to ask the jury for punitive damages. The judge in Cobb referred to the finding in McIntyre where the Court of Appeal stated that one must consider whether punitive damages should be awarded when punishment for the same action has already been imposed in a separate proceeding.

However, counsel for the plaintiff pointed out this was a second offence on the charge of impaired driving for Mr. Miller, and there was no evidence that the original sentence was sufficient or in any way deferred the defendant from repeating his crime. 

Motion judges are generally advised that motions for partial summary judgements should be granted only in rare cases and not as a matter of course.  However, the judge in the current case believed he could easily determine whether the plaintiff’s claim for punitive, aggravated and exemplary damages should be included in the jury trial.  The judge also acknowledged that a claim for punitive damages could potentially impact the defendant’s estate, beyond his insurance policy (since punitive damages are not covered under vehicle insurance).

On the question of whether a claim for punitive damages should go ahead, the judge found that, because this is a case where the criminal offence has already been decided resulting in a custodial sentence and a period of driving prohibition, “it would be inappropriate for the civil court to go behind the determination of the criminal court and substitute its own finding as to whether that sentence appropriately met the objectives of retribution, deterrence and denunciation”.  And, as the wrongdoer, Mr. Miller, has already been punished for the same actions as are at issue in the civil trial, it would not be appropriate to bring the claim for punitive damages to a jury.  Therefore, the judge dismissed the plaintiff’s claim seeking punitive damages. 

On the issue of exemplary damages, the judge noted that the goal of exemplary damages is to punish and deter, which is the same as for punitive damages.  Therefore, the claim for exemplary damages was similarly dismissed.

Aggravated damages have a different purpose than punitive damages.  The goal of punitive damages is to punish a defendant for egregious conduct, while aggravated damages are intended to compensate a plaintiff in a civil action for exceptional harm or intangible injuries.  In Ngo, the plaintiff’s psychologist stated that Mr. Miller’s impaired driving conduct caused a heightened degree of psychological injuries and emotional distress to the plaintiff. The judge found that whether or not the plaintiff should receive compensation for aggravated damages is an appropriate subject for a jury to decide and may proceed to trial.


Disclaimer: Our blog is intended to inform our existing and prospective clients about topics pertinent to their lives. While our goal is to provide accurate and factual information, this in no way should be taken as legal advice or applied to specific cases. It is in your best interest to contact a licenced and practising lawyer for legal representation, as matters of the law are often complicated and cannot be fully assessed without knowing all of the details of a case.