Padfield v. Martin

Padfield et al. v. Martin et al. [Indexed as: Padfield v. Martin]

64 O.R. (3d) 577 [2003] O.J. No. 2003 Docket No. C35825

Court of Appeal for Ontario, O'Connor A.C.J.O., Laskin and Borins JJ.A. May 27, 2003

Damages -- Personal injuries -- Pain and suffering -- Appeal -- Plaintiff suffering perforated bowel and fracture of L2 vertebra in motor vehicle accident -- Jury assessing general damages in amount of $500,000 -- Trial judge permitting plaintiff to amend statement of claim to increase claim for general damages to conform with upper limit of $274,000 -- Award of general damages of $274,000 being excessive -- Trial judge's instruction to jury on general damages containing no error -- Court of Appeal substituting its own assessment of damages rather than ordering new trial -- Court assessing general damages at $150,000.

Damages -- Personal injuries -- Pain and suffering -- Upper limit -- Plaintiff's inability to recover pecuniary damages for loss of earning capacity under s. 267.1 of Insurance Act not constituting reason for awarding general damages in excess of upper limit of $274,000 -- Insurance Act, R.S.O. 1990, c. I.8, s. 267.1.

At the age of 17, the plaintiff suffered a perforated bowel and a fracture of the L2 vertebra in his back in a motor vehicle accident. He was hospitalized for 15 days, during which he underwent surgery on his bowel and on his fractured vertebra. The plaintiff brought an action claiming general damages in the amount of $250,000. Liability was admitted by the defendants.

Evidence was led at trial that the plaintiff might have been an elite volleyball player but for the accident, that his playing ability was diminished after the accident and that he failed to obtain an athletic scholarship at an American university and had to give up his goal of playing for the Canadian national volleyball team. Defence counsel suggested figures to the jury ranging from $30,000 to $80,000 as an appropriate assessment of non-pecuniary damages. Neither counsel for the plaintiff nor the trial judge suggested figures to the jury. Because the trial judge did not anticipate that it might be necessary, he did not instruct the jury on the upper limit of $274,000 for general damages. The jury assessed general damages at $500,000. Counsel for the plaintiff moved for judgment in accordance with this assessment and in doing so sought permission to amend the amount claimed in the statement of claim to $500,000. Defence counsel requested that the trial judge substitute his own assessment of general damages on the basis that the jury verdict was perverse.

The trial judge rejected the plaintiff's argument that the rationale for imposing a cap on general damages did not exist in this case since the plaintiff would receive virtually no compensation for pecuniary loss by operation of s. 267.1 of the Insurance Act. He held that s. 267.1(2) and (8) of the Act require that the assessment of non-pecuniary damages be made without regard to a claimant's inability to recover for pecuniary loss. He permitted the plaintiff to amend the statement of claim to conform to the upper limit of $274,000, holding that to do so would not prejudice the defendants. After subtracting the statutory deduction, the trial judge entered judgment for the plaintiff in the amount of $263,079. The defendants appealed and the plaintiff cross-appealed.

Held, the appeal should be allowed and the cross-appeal dismissed. [page578]

As a general rule, where a jury's award for general damages exceeds the upper limit, the trial judge is required to enter judgment for an amount that conforms with that cap. The trial judge did not err in principle by entering judgment for an amount that conformed with the cap rather than the amount assessed by the jury.

There were no special or exceptional circumstances in this case that would have justified the trial judge declining to interfere with the jury's assessment of non-pecuniary damages. The trial judge was correct in rejecting the plaintiff's argument that because he was not entitled to recover pecuniary damages by operation of s. 267.1 of the Insurance Act, his inability to receive full compensation for his pecuniary loss should be taken into account in assessing non-pecuniary damages. The plaintiff was in essence proposing that as a remedy for his inability to pursue compensation for loss of earning capacity either through tort damages for pecuniary loss or through the Statutory Accident Benefits Schedule, it should as a matter of law be open to him to recover for such loss through the jury's award of damages for non-pecuniary loss. However, loss of earning capacity is not an element of non- pecuniary loss for the purposes of s. 267.1. More importantly, the trial in this case proceeded on the basis that the jury was not to consider loss of earning capacity in its assessment of damages. It was not part of the jury's mandate to take into account the plaintiff's inability to recover for his loss of earning capacity through other avenues.

The trial judge did not err in permitting the amendment of the statement of claim to increase the amount claimed from $250,000 to $274,000. The amendment did not alter the case the defendants had to meet. It was difficult to imagine how the defendants would have defended differently against a claim for $274,000 as compared to $250,000.

The award of general damages in the amount of $274,000 was excessive. It was reasonable for the jury to find as a fact that the plaintiff suffered a great deal of physical pain as a result of the accident. It was also reasonable for them to find that the accident was causally related to the plaintiff's ongoing pain and to his diminished capacity for playing volleyball, notwithstanding the evidence of a pre-existing condition. Further, although it might be doubtful whether, but for the accident, the plaintiff would have had the opportunity to play on the national volleyball team, receive a scholarship to an American school and/or play volleyball in a professional capacity, there was some evidence, if accepted by the jury, that could have supported that conclusion, and it should be assumed that the jury made the finding most favourable to the plaintiff. It was reasonable for the jury to find that playing volleyball at an elite level was an important dream for the plaintiff. However, in other cases involving similar injuries or plaintiff who were competitive athletes before their injuries, the highest award was $80,000. The parties' offers to settle ranged from the defendants' offer of $97,000 to the plaintiff's offer of $125,000. It is not inappropriate for an appellate court to consider offers to settle in reviewing an award of damages made at trial. Even with the assumption of facts most favourable to the plaintiff, $274,000 was an inordinately high amount to award the plaintiff as reasonable solace for his misfortune.

Where the fairness of the trial is not in issue, and the jury appears simply to have arrived at an inappropriate assessment on the evidence, the interest in avoiding the delay and expense of a new trial would seem to weigh in favour of the appeal court substituting its own assessment of damages under s. 119 of the Courts of Justice Act, R.S.O. 1990, c. C.43 rather than ordering a new trial. Conversely, a new trial is likely more appropriate where errors in the conduct of the trial were such that, had those errors not occurred, there might have been a different outcome. In this case, the trial judge's instructions to the jury on the [page579] assessment of general damages were impeccable. As there was no error in the trial judge's instruction to the jury on general damages, it was open to the appeal court to substitute its own assessment of damages. The plaintiff's general damages were assessed at $150,000.

APPEAL and CROSS-APPEAL from an award of damages in a personal injury action.

Payne v. Alb (1999), 44 O.R. (3d) 598 (C.A.), folld Alderson v. Callaghan (1998), 40 O.R. (3d) 136, 42 C.C.L.T. (2d) 230, 21 C.P.C. (4th) 224 (C.A.); Hoskin v. Han (2003), 2003 BCCA 220, 12 B.C.L.R. (4th) 21, [2003] B.C.J. No. 847 (QL) (C.A.); Hutton v. Way, [1997] O.J. No. 4755 (QL), 105 O.A.C. 361 (C.A.); MacKinnon v. Western Fair Assn., [1993] O.J. No. 472 (QL) (C.A.); Smilovsky v. Cartwright (2001), 6 C.P.C. (5th) 381 (Ont. Div. Ct.); ter Neuzen v. Korn, [1995] 3 S.C.R. 674, 11 B.C.L.R. (3d) 201, 127 D.L.R. (4th) 577, 188 N.R. 161, [1995] 10 W.W.R. 1 (sub nom. Neuzen v. Korn); To v. Toronto Board of Education (2001), 55 O.R. (3d) 641, 204 D.L.R. (4th) 704 (C.A.), consd

Other cases referred to Allen v. Brazeau, [1967] 2 O.R. 665, 65 D.L.R. (2d) 37 (C.A.); Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, 83 D.L.R. (3d) 452, 19 N.R. 50, [1978] 1 W.W.R. 577, 8 A.R. 182, 3 C.C.L.T. 225; Arnold v. Teno, [1978] 2 S.C.R. 287, 83 D.L.R. (3d) 609, 19 N.R. 1, 3 C.C.L.T. 272; Arslanovic v. Paterson (1993), 23 C.P.C. (3d) 190, [1993] O.J. No. 3067 (QL) (Ont. Gen. Div.); Etmanski v. Magnum Glass Inc., [1998] O.J. No. 4057 (QL) (C.A.); Herd v. Terkuc, [1960] S.C.R. 602, 24 D.L.R. (2d) 360; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, 24 O.R. (3d) 865n, 126 D.L.R. (4th) 129, 184 N.R. 1, 30 C.R.R. (2d) 189, 25 C.C.L.T. (2d) 89, affg (1994), 18 O.R. (3d) 385, 114 D.L.R. (4th) 1, 20 C.C.L.T. (2d) 129 (C.A.), revg in part (1992), 7 O.R. (3d) 489 (Gen. Div.); Koukounakis v. Stainrod (1995), 23 O.R. (3d) 299, 12 M.V.R. (3d) 78 (C.A.); Lindal v. Lindal, [1981] 2 S.C.R. 629, 34 B.C.L.R. 273, 129 D.L.R. (3d) 263, 39 N.R. 361, [1982] 1 W.W.R. 433, 19 C.C.L.T. 1; Nance v. B.C. Electric Railway, [1951] A.C. 601, [1951] 3 D.L.R. 705, 2 W.W.R. (N.S.) 665, 67 C.R.T.C. 340, [1951] 2 All E.R. 448 (P.C.); Padfield v. Martin, [2001] O.J. No. 5938 (QL) (S.C.J.); Papadakis v. Camilleri (1989), 33 C.P.C. (2d) 291 (Ont. Dist. Ct.); Sikora v. Asbestonos Corp., [1975] 1 S.C.R. 115, 45 D.L.R. (3d) 715; Thornton v. Prince George School District No. 57, [1978] 2 S.C.R. 267, 83 D.L.R. (3d) 480, 19 N.R. 50, [1978] 1 W.W.R. 577, 8 A.R. 182, 3 C.C.L.T. 225; Walker v. CFTO Ltd. (1987), 59 O.R. (2d) 104, 37 D.L.R. (4th) 224, 39 C.C.L.T. 121 (C.A.); Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595, 209 D.L.R. (4th) 257, 283 N.R. 1, [2002] I.L.R. 1-4048, 2002 SCC 18, 20 B.L.R. (3d) 165, [2002] S.C.J. No. 19, revg (1999), 42 O.R. (3d) 641, 170 D.L.R. (4th) 280, [1999] I.L.R. 1-3659, 32 C.P.C. (4th) 3 (C.A.), revg (1996), 27 O.R. (3d) 479, 132 D.L.R. (4th) 568, 47 C.P.C. (3d) 229 (Gen. Div.); Y. (S.) v. C. (F.G.) (1996), 26 B.C.L.R. (3d) 155, [1997] 1 W.W.R. 229, 30 C.C.L.T. (2d) 82 (C.A.)

Statutes referred to Courts and Legal Services Act 1990 (U.K.), 1990, c. 41, s. 8 Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 119, 134 Courts of Justice Amendment Act, 1989 (No. 2), S.O. 1989, c. 67, s. 4 Family Law Act, R.S.O. 1990, c. F.3 Insurance Act, R.S.O. 1990, c. I.8, s. 267.1 R.S.C., Ord. 59, rule 11(4)

Rules and regulations referred to Statutory Accident Benefits Schedule -- Accidents after December 31, 1993 and before November 1, 1996, O. Reg. 776/93 [page580]

Authorities referred to McGregor, H., McGregor on Damages, 16th ed. (London: Sweet & Maxwell, 1997) Waddams, S.M., The Law of Damages, looseleaf (Aurora, ON: Canada Law Book, 2002)

Crawford M. MacIntyre and Rita Bambers, for appellants. Karl Arvai, for respondent.

The judgment of the court was delivered by

1BORINS J.A.: -- This appeal arises from a jury's assessment of non-pecuniary, or general, damages in the amount of $500,000, subsequently adjusted by the trial judge to $274,000 to conform with the cap or limit imposed on general damages by the Supreme Court of Canada. Although the appellants say that the trial judge was correct in principle in not accepting the jury's assessment, adjusting it to the upper limit of the cap and rejecting the respondent's motion to amend the amount claimed in his statement of claim to conform with the jury's assessment, they contend that the damages as adjusted cannot stand. They say that the damages are unreasonable and perverse as the respondent's injuries are not so severe as to attract an award at the upper limit of the cap. The appellants suggest that the jury's $500,000 assessment may have been influenced by a passage in the trial judge's instructions on general damages, which the appellants submit amounted to a misdirection. I agree with the appellants that the award as adjusted cannot stand and would allow their appeal.

2The respondent has cross-appealed from the trial judge's refusal to amend his claim to conform with the jury's $500,000 assessment of his general damages. He submits that there are special circumstances in this case that justify an award in excess of the cap and contends that the trial judge erred in adjusting the award to conform with the cap. I would dismiss the cross-appeal.

Background

3On January 17, 1994, at the age of 17, the respondent Jared Padfield was involved in a motor vehicle accident. He was a passenger on the back bench seat of a minivan when it collided with a transport trailer owned by the appellant L.M. Transport Ltd. ("LMT") and operated by the appellant Leonard Martin. As a result of the accident, Mr. Padfield suffered a perforated bowel [page581] and a fracture of the L2 vertebra in his back. He was hospitalized for 15 days, during which he underwent surgery first on his bowel, and later on his fractured vertebra. The repair of the fracture involved the fusion of the L2 and L3 vertebrae.

4Mr. Padfield and his parents brought an action against LMT and Mr. Martin, as well as the owner and operator of a third vehicle, seeking $100,000 in damages (later amended to $250,000) and making claims under the Family Law Act, R.S.O. 1990, c. F.3. The action against the third vehicle defendants was dismissed on consent. Liability for the accident was admitted by the appellants and a trial was held before a jury for the purpose of assessing non-pecuniary damages.

5In addition to testimony about pain and suffering endured by Mr. Padfield and about the emotional and psychological effect of the injuries, evidence was led at trial concerning the prospects that Mr. Padfield might have had as an elite volleyball player but for the accident. At the time of the accident, Mr. Padfield was a competitive player, and had devoted considerable time to the sport both in high school and at a local volleyball club. It was his pre-accident goal to play for the Canadian national volleyball team. After the accident, his playing ability was diminished. He failed to obtain an athletic scholarship at the American universities he contacted after the accident, and gave up playing competitive volleyball in his second year at the University of Western Ontario. He ultimately went to teacher's college, and became a teacher of Grade 7 and 8 students and a volleyball coach in Huntsville, Ontario.

6The defence theory was that the most likely cause of Mr. Padfield's lower back pain and of his inability to pursue his volleyball career was a progressive spinal condition that was present in its initial stage prior to the accident. Their position was that Mr. Padfield had recovered from his injuries in a relatively short time following the accident and that any ongoing pain or disability resulted from the pre-existing condition and was unrelated in any material way to the accident. Mr. Padfield's position was that the spinal condition was asymptomatic prior to the accident, and would probably have remained that way if not for the fusion required as a result of the injuries that he sustained in the accident. His counsel advanced the theory that even if Mr. Padfield's condition would probably have become symptomatic in any event, he would have been able to play out his entire volleyball career but for the injuries caused by the appellants.

7Defence counsel suggested figures to the jury ranging from $30,000 to $80,000 as an appropriate assessment of non-pecuniary damages. Neither Mr. Padfield's counsel nor the trial judge [page582] suggested figures to the jury. At the end of a ten-day trial, the jury returned its assessment of Mr. Padfield's damages. To everyone's surprise, the jurors assessed Mr. Padfield's non-pecuniary damages in the amount of $500,000 for pain and suffering, loss of enjoyment of life and loss of amenities of life. Mr. Padfield's counsel moved for judgment in accordance with this assessment, and in doing so sought permission to amend the amount claimed in the statement of claim from $250,000 to $500,000. Because the jury's award exceeded the cap for general non-pecuniary damages established by the Supreme Court of Canada in the 1978 "Andrews trilogy" (Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, 83 D.L.R. (3d) 452; Thornton v. Prince George School District No. 57, [1978] 2 S.C.R. 267, 83 D.L.R. (3d) 480; Arnold v. Teno, [1978] 2 S.C.R. 287, 83 D.L.R. (3d) 609), which, the parties agreed, as adjusted by inflation stood at approximately $274,000 at the time of the trial, the trial judge asked for written submissions from the parties on how he should proceed in the circumstances.

8Counsel for LMT argued that the jury's assessment could not stand because it exceeded the Andrews cap, and requested that the trial judge substitute his own assessment on the basis that the jury verdict was perverse. Mr. Padfield's counsel argued that the cap did not apply in the circumstances of this case, and that the statement of claim should be amended to permit judgment to be entered for the amount assessed by the jury. He submitted that the cap was based on the proposition that because plaintiffs receive compensation for all pecuniary aspects of their injuries, the purpose of a general damages award is therefore limited to compensating non-pecuniary loss. Since Mr. Padfield's circumstances meant he would receive virtually no compensation for pecuniary loss in this case by operation of s. 267.1 of the Insurance Act, R.S.O. 1990, c. I.8 (also referred to as Bill 164), the rationale for imposing a cap on general damages did not exist here.

9In a written endorsement dated January 18, 2001, reported at [2001] O.J. No. 5938 (QL) (S.C.J.), the trial judge rejected Mr. Padfield's argument. In doing so, he applied the decision of this court in Payne v. Alb (1999), 44 O.R. (3d) 598 (C.A.), where it was held that s. 267.1(2) and (8) of the Act require that the assessment of non-pecuniary damages be made without regard to a claimant's inability to recover for pecuniary loss. The trial judge also held that permitting Mr. Padfield to amend the amount sought in his statement of claim from $250,000 to $500,000 would prejudice LMT and Mr. Martin. He stated that the charge to the jury had not included an instruction on the cap because it [page583] had not occurred to anyone that such an instruction might be necessary in the circumstances of this case, noting that "the jury surprised us all with its assessment of $500,000." Had Mr. Padfield sought $500,000 originally, the trial judge would have had to instruct the jury on the cap, and the jury's deliberations would have proceeded on a different basis. The trial judge concluded, however, that a more modest amendment to conform to the cap ceiling of $274,000 would not result in any prejudice. After subtracting the statutory deduction, the trial judge entered judgment for Mr. Padfield in the amount of $263,079.

10The appellants appealed, arguing that the resulting award is extravagantly high in the circumstances of this case. They ask that a new trial be ordered or that this court substitute its own assessment of the damages under s. 119 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Mr. Padfield cross-appealed, reiterating his argument that the trial judge should not have interfered with the jury's assessment because the cap should not apply in these circumstances. At the hearing of this appeal, counsel for Mr. Padfield submitted further that if the cap does apply, the judgment for the cap amount should stand. In the event that this court deems that amount too high, counsel for Mr. Padfield submitted that this court should substitute its own assessment of damages rather than ordering a new trial.

Issues

11In my view, these are the issues to be considered in this appeal:

(1) As a matter of principle, was the trial judge correct in adjusting the jury's assessment of damages to an amount that conformed with the cap?

(2) Are there special or exceptional circumstances in this case, as the respondent contends, that justify an award of general damages exceeding the cap amount of $274,000?

(3) Did the trial judge err in amending the statement of claim to increase the amount claimed from $250,000 to the cap amount of $274,000?

(4) Is the award of general damages of $274,000 excessive?

(5) Should a new trial be ordered, or should the court substitute its own assessment of damages? [page584]

Analysis

1. As a matter of principle, was the trial judge correct in adjusting the jury's assessment of damages to an amount that conformed with the cap?

12As a general rule, where a jury's award for general damages exceeds the upper limit set out in the Andrews trilogy, the trial judge is required to enter judgment for an amount that conforms with that cap. In ter Neuzen v. Korn, [1995] 3 S.C.R. 674, 127 D.L.R. (4th) 577, Sopinka J. held as follows at para. 114:

Whether the jury is or is not advised of the upper limit, if the award exceeds the limit, the trial judge should reduce the award to conform with the "cap" set out in the trilogy and adjusted for inflation. While a trial judge does not sit in appeal of a jury award, the trilogy has imposed as a rule of law a legal limit to non-pecuniary damages in these cases. It would be wrong for the trial judge to enter judgment for an amount that as a matter of law is excessive. While it is true that the matter can be corrected on appeal, an appeal may be unnecessary if the correct amount is fixed at trial.

(Emphasis added)

13In the following paragraph, para. 115, Sopinka J. added:

In the present case, counsel for the respondent submitted that this was not a case which would approach the upper limit. However, it was submitted that the jury should be instructed on the limit if the appellant's counsel or the trial judge felt otherwise. Counsel for the appellant did not request that the trial judge charge the jury on the upper limit. In these circumstances, I agree with the Court of Appeal that it was reasonable for the trial judge not to give an instruction on the upper limit. However, since the damages awarded for non-pecuniary losses far exceeded the upper limit, the trial judge ought to have reassessed the award in accordance with the Andrews trilogy.

(Emphasis added)

14It follows that the trial judge did not err in principle by entering judgment for an amount that conformed with the cap rather than the amount assessed by the jury.

15Whether the trial judge had any alternatives was not addressed by counsel before the trial judge or this court. The availability of alternatives in circumstances similar to this case was considered recently by the British Columbia Court of Appeal in Hoskin v. Han, 2003 BCCA 220, 12 B.C.L.R. (4th) 21 (C.A.) at paras. 1-11 and 97. However, the result on appeal turned on a different issue.

16As the court stated in Hoskin, in my view, an alternative available to the trial judge in a case where the jury's assessment exceeds the cap amount, is to provide the jury with the proper instructions about the cap and direct it to reconsider its [page585] assessment of general damages. This practice was approved by the Supreme Court of Canada in Herd v. Terkuc, [1960] S.C.R. 602, 24 D.L.R. (2d) 360, which was applied by this court in Allen v. Brazeau, [1967] 2 O.R. 665, 65 D.L.R. (2d) 37 (C.A.).

17Another alternative where the jury's assessment of general damages exceeds the cap amount is for the trial judge, and not the jury, to reassess damages to ensure that they are consistent with the legal principles applicable to general damages in the circumstances of the case. This raises the question of what Sopinka J. meant, particularly in para. 15 of ter Neuzen, where he said that "the trial judge ought to have reassessed the award in accordance with the Andrews trilogy." On one interpretation of the view of Sopinka J., the only option open to the trial judge is to reduce the general damages to conform with the cap. Another interpretation, to be considered in a case in which it is contended, as in this case, that the cap is excessive, is for the trial judge to assess damages at an amount below the cap. Support for the second interpretation may be found in the concurring reasons of L'Heureux-Dubé J. where she said at para. 126:

If an award is excessive, I share my colleague's opinion that the judge should reduce it to an amount that he or she believes is appropriate on the facts of the case in order to avoid an otherwise unnecessary appeal.

18In my view, both alternatives have many advantages. The major advantage in circumstances such as we have in this case is that having the jury reconsider its award, or permitting the trial judge to make the assessment of general damages, is to avoid an appeal, subject of course to error on the part of the jury or the trial judge. While I am satisfied that authority exists for the jury to reconsider its award, I am uncertain that Sopinka J. intended that the trial judge may do more than to reduce the jury's award to the cap amount. The resolution of this question must await a case in which the issue is properly before this court.

2. Are there special or exceptional circumstances in this case, as the respondent contends, that justify an award of general damages exceeding the cap amount of $274,000?

19In his cross-appeal, however, Mr. Padfield argues that the trial judge was wrong to reduce the award to conform with the cap, notwithstanding the directive in ter Neuzen, because the circumstances of this case render the cap inapplicable. Mr. Padfield addresses what he submits are the two elements of the rationale behind the cap, and argues that neither apply in this case.

20First, he argues that part of the policy as stated in Andrews at p. 262 S.C.R. for imposing a cap on non-pecuniary [page586] damages is that the plaintiff is to receive full compensation for his or her pecuniary loss, covering where relevant, past and future loss of income and past and future care expenses. See also, Lindal v. Lindal, [1981] 2 S.C.R. 629, 129 D.L.R. (3d) 263, at p. 639 S.C.R. Mr. Padfield points out that because of his special circumstances, he does not qualify for any compensation for pecuniary loss, past or future, arising from the accident. He submits, therefore, that the reason for applying a cap to non-pecuniary damages does not exist in his case.

21His special circumstances are as follows. This is a motor vehicle injury case in which pecuniary and non-pecuniary damages are governed by legislation. Because the motor vehicle accident giving rise to Mr. Padfield's claim occurred between January 1, 1994 and October 31, 1996, this action is governed by s. 267.1 of the Insurance Act. Where a person sustains injuries or death as a result of the operation of a motor vehicle, subsections 267.1(1) and (2) operate to eliminate tort liability for damages for pecuniary loss, while preserving liability for damages for non-pecuniary loss in the case of death or serious disfigurement or impairment. Pecuniary loss is intended to be compensated instead under the Act's Statutory Accident Benefits Scheme ("SABS"), set out in the Statutory Accidents Benefits Schedule -- Accidents after December 31, 1993 and before November 1, 1996, O. Reg. 776/93. Mr. Padfield notes that because he was a student at the time of the accident, he was eligible only for education disability benefits under the statutory accident benefits scheme. Since he was able to return to school and essentially resume his normal activities after the accident, he failed to qualify for SABS (which, in turn, means that under the scheme he was ineligible for loss of earning capacity benefits). He argues, therefore, that he cannot receive compensation for any financial loss arising from his inability to secure a university scholarship, to pursue a professional volleyball career and, ultimately, to reap any of the other financial benefits that could flow from such a career. Therefore, he argues, he has suffered significant pecuniary loss as a result of his injuries for which there is no compensation available either through tort damages or through SABS.

22The same argument was made before the trial judge on the motion for judgment following the jury's verdict. The trial judge rejected the argument, concluding that the question of whether the cap applies to cases falling under s. 267.1 had already been disposed of in Payne, supra. In that case, in which there was a motion to determine a question of law, Morden J.A. held that the term "non-pecuniary loss" means the same in s. 267.1(2) as it does at common law, and, consequently, that it was subject to the [page587] common law cap. He noted further at p. 605 O.R. that s. 267.1(8), paras. 1 and 2, which require that damages for non-pecuniary loss be determined generally without regard to the provisions of s. 267.1, support the conclusion that a plaintiff's inability to recover damages for pecuniary loss under s. 267.1 is irrelevant to an assessment of non-pecuniary damages:

The better view of s. 267.1(8) is that it is directed to the simple common law rule respecting the assessment of damages for non-pecuniary loss, which rule includes the limit imposed by the trilogy. Specifically, s. 267.1(8), para. 2(ii) directs that the determination of non-pecuniary damages is to be made without regard to the fact that the defendant is protected from liability for damages for pecuniary loss. This goes to the heart of the appellants' argument, as the statute is clear that a court cannot take into account that the plaintiff is not recovering damages for pecuniary loss.

23In my view, Payne provides a conclusive answer to the respondent's submission that because he was not entitled to recover pecuniary damages by the operation of s. 267.1, his inability to receive full compensation for what he refers to as his pecuniary loss should be taken into account in his assessing his non-pecuniary damages.

24Mr. Padfield, however, places emphasis on the assumption of Morden J.A. at p. 604 O.R. that statutory accident benefits, while they generally do not amount to full compensation, are generous, and because they are paid on a no fault basis can sometimes exceed common law pecuniary damages for tort liability. If I understand his argument, he submits that the reasoning in Payne is based at least partly on that conclusion, and, therefore, does not apply to this case, because here, Mr. Padfield will receive virtually no compensation for pecuniary loss. The cap should, therefore, not have been imposed in this case, and the jury's assessment should have been allowed to stand.

25I do not agree. In essence, the respondent's position is that because injured parties are denied pecuniary damages under s. 267.1 of the Act, which damages would compensate them in full, that there should no longer be a limit on non-pecuniary damages permitted under the provision. This argument was made and rejected in Payne in the passage from the reasons of Morden J.A. that I have quoted above. He stated further at p. 604 O.R. that the term "damages for non-pecuniary loss" in s. 267.1(2) has the same meaning that it has at common law under the trilogy.

26In any event, it seems to me that even if the reasoning in Payne is not applicable, there are nevertheless two reasons why Mr. Padfield's argument remains untenable. First, he is in essence proposing that as a remedy for his inability to pursue compensation for loss of earning capacity either through tort [page588] damages for pecuniary loss or through the SABS, it should as a matter of law be open to him to recover for such loss through this jury's award of damages for non-pecuniary loss. This court decided in Payne, however, on a second question of law, that loss of earning capacity is not an element of non-pecuniary loss for the purposes of s. 267.1.

27More importantly, as the trial judge noted in his endorsement, the trial in this case proceeded on the basis that the jury was not to consider loss of earning capacity in its assessment of damages. Indeed, the trial judge instructed the jury that general damages, which they were required to assess, "are intended to compensate the plaintiff for his non- financial loss". It was not part of the jury's mandate to take into account Mr. Padfield's inability to recover for such loss through other avenues. In my view, it would make little sense to evaluate their assessment on that basis post facto.

28Mr. Padfield submits that another element of the rationale behind the cap is the desirability of avoiding the social burden of large awards and the need for uniformity and predictability as between injured plaintiffs. He argues that these values are not offended by failing to apply the cap in the special circumstances of this case, because the class of potential plaintiffs with similar circumstances would be very small. He submits that there would be very few people (1) whose cases fell under s. 267.1, and (2) who would be eligible only for education disability benefits, but (3) who could return to school, as he did, and complete their education, thus losing eligibility for loss of earning capacity benefits. He is essentially asking this court to carve out an exception to the application of the cap for members of that limited class.

29It is in theory open to this court to create an exception to the cap and to decide that it does not apply in certain circumstances on policy grounds. For example, the Supreme Court of Canada concluded in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, 126 D.L.R. (4th) 129, that the cap does not apply in defamation cases, because the function of general damages is different in such cases than in personal injury cases. In British Columbia, the Court of Appeal has concluded that the policy reasons for the cap are not present, and therefore the cap does not apply, where the cause of action is an intentional tort involving criminal behaviour, such as sexual assault: Y. (S.) v. C. (F.G.) (1996), 26 B.C.L.R. (3d) 155, [1997] 1 W.W.R. 229 (C.A.).

30The reasons why this part of Mr. Padfield's argument should fail are the same as those that apply to the first part of his argument. To create an exception for people in Mr. Padfield's circumstances would allow an award for non-pecuniary loss under [page589] s. 267.1 effectively to compensate members of that class for their loss of future earning capacity. As noted above, this court in Payne ruled that loss of income and loss of future earning capacity are not elements of non- pecuniary loss under s. 267.1. Furthermore, even if this court were to create such an exception in this case, it could not be of any help to Mr. Padfield, because this trial did not proceed with a view to having the jury quantify his lost earning capacity, and the assessment should not now be reviewed as if it had. Moreover, as the appellants point out, Mr. Padfield presented very little evidence of whether, but for his injuries, he would have received a scholarship to an American university and become a professional volleyball player, and of what he might have earned playing professional volleyball.

31Mr. Padfield advances the alternative position that the courts maintain a residual discretion at common law to award an amount in excess of the upper limit of damages for non- pecuniary losses in exceptional and rare circumstances, and that this discretion applies under s. 267.1. He submits that if the cap applies in this case, that discretion ought to be exercised here.

32As noted above, this court in Payne concluded that the definition of non-pecuniary loss in s. 267.1(2) was the same as the common law definition and thus included the cap. Applying that reasoning, it follows that the definition of non-pecuniary loss in s. 267.1(2) includes any common law rule regarding the possibility of exceeding the cap. The decisions in the Andrews trilogy and in Lindal, left open the possibility of permitting awards larger than the cap in rare and exceptional cases.¹

33Mr. Padfield appears to argue that, in addition to the physical pain he suffers, the prospect of a career in volleyball was such an important aspect of his life that the loss of that prospect in his case constitutes one of the rare circumstances envisioned by the Supreme Court of Canada for exceeding the cap. As support for this argument, he cites the following passage from Payne at p. 608 O.R.:

[F]or some injured persons the inability to work, or do certain kinds of work, may be an aspect of the diminution in the amenities of life [citations omitted]. If this is so, then I think it could be properly taken into account under this heading when non-pecuniary damages are assessed. [page590]

34The trial clearly proceeded on the basis that Mr. Padfield was seeking to be compensated for the non-pecuniary aspect of his loss of opportunity to pursue a volleyball career. Indeed, in instructing the jury the trial judge said that the jury could consider Mr. Padfield's loss of ability to pursue a U.S. college scholarship as an element of his loss of amenities of life. It is unlikely, however, that the evidence in this case could support the conclusion that any such loss comes within the category of rare circumstances envisioned by the Supreme Court for exceeding the cap. In Lindal, the Supreme Court addressed the possibility of exceeding the cap as follows at pp. 642-43 S.C.R.:

It is true that the Court in Andrews spoke of exceeding the limit of $100,000 in "exceptional circumstances". The variety of possible fact situations is limitless, and it would be unwise to foreclose the possibility of ever exceeding the guide-line of $100,000. But, if the purpose of the guide-line is properly understood, it will be seen that the circumstances in which it should be exceeded will be rare indeed. We award non-pecuniary damages because the money can be used to make the victim's life more bearable. The limit of $100,000 was not selected because the plaintiff could only make use of $100,000 and no more. Quite the opposite. It was selected because without it, there would be no limit to the various uses to which a plaintiff could put a fund of money.

35It is difficult to discern from this paragraph what circumstances might be so exceptional as to justify a departure from the cap. It is unlikely, though, that Mr. Padfield's loss of opportunity to pursue his volleyball career would be such a circumstance. The disappointment and loss of enjoyment suffered by Mr. Padfield was not presented at trial on the basis that it was exceptionally devastating. It is difficult to accept, as important as volleyball was to Mr. Padfield, that an award of the cap amount of $274,000, or some lesser or greater amount, could not, under the functional approach established in Andrews, provide "reasonable solace for his misfortune".

36Therefore, I do not accept the respondent's submission that there are special or exceptional circumstances in this case that would have justified the trial judge declining to interfere with the jury's $500,000 assessment of non-pecuniary damages and refusing to amend the statement of claim to conform with the assessment.

3. Did the trial judge err in amending the statement of claim to increase the amount claimed from $250,000 to the cap amount of $274,000?

37At the trial in Hill v. Church of Scientology of Toronto (1992), 7 O.R. (3d) 489 (Gen. Div.), affd on other grounds [page591] (1994), 18 O.R. (3d) 385, 114 D.L.R. (4th) 1 (C.A.), affd on other grounds [1995] 2 S.C.R. 1130, 126 D.L.R. (4th) 129, where aggravated and punitive damages were at issue, Carruthers J. outlined at p. 496 O.R. the test under rule 26.01 for amending a statement of claim at the end of trial:

Subsequent cases which have dealt with the wording of the rule, to my mind, suggest that "prejudice" within the context of that wording means that the amendment, if allowed, would alter the case to be met and that costs or an adjournment would not permit the defendant the opportunity or ability to fairly meet it. As Osler J. has said, the onus is upon the defendant, or the defendants as the case may be, to demonstrate such prejudice on a balance of probabilities. In this respect, I do not think the fact of the jury's assessment being higher than the amounts claimed in the statement of claim, of itself, satisfies this onus.

38In this case, the appellants argue that the trial judge should not have amended the amount sought in the statement of claim after the delivery of the jury's verdict because it resulted in prejudice to them. They argue that the amendment altered the case to be met, and that they would have prepared for trial differently had they had notice ahead of time that a higher amount would be sought.

39In Whiten v. Pilot Insurance Co. (1996), 27 O.R. (3d) 479, 132 D.L.R. (4th) 568 (Gen. Div.), vard on other grounds (1999), 42 O.R. (3d) 641, 170 D.L.R. (4th) 280 (C.A.), affd on other grounds 2002 SCC 18, [2002] 1 S.C.R. 595, 209 D.L.R. (4th) 257, the trial judge permitted an amendment to a claim for punitive damages from $125,000 to $1 million at the end of the trial, where the defendant could not show it would have defended differently had the claim for $1 million been included in the statement of claim. Similarly, in Papadakis v. Camilleri (1989), 33 C.P.C. (2d) 291 (Ont. Dist. Ct.), a claim for general damages was amended from $40,000 to $100,000, where the arguments made by defence as to what would have been done differently did not, in the trial judge's view, meet the onus of establishing prejudice. See also Arslanovic v. Paterson (1993), 23 C.P.C. (3d) 190, [1993] O.J. No. 3067 (QL) (Gen. Div.).

40The appellants' description in their factum of what they would have done differently seems to take into account a hypothetical amendment to $500,000; in fact, the trial judge rejected such an amendment and instead permitted an amendment up to the cap amount. It is difficult to imagine how the appellants would have defended differently against a claim for $274,000 as compared to $250,000, and therefore I am satisfied that they were not prejudiced as a result of the amendment permitted by the trial judge. Accordingly, the trial judge did not err in amending the statement of claim. [page592]

4. Is the award of general damages of $274,000 excessive?

41It now remains to determine whether the circumstances of this case warrant an award of non-pecuniary damages at the upper limit of the cap. The appellants contend that the award of $274,000 is excessive and that this is a proper case in which the award should be set aside and a new trial ordered, or in which this court should substitute its assessment of the respondent's non-pecuniary damages.

42The leading case on the standard of appellate review of an assessment of damages generally is Nance v. B.C. Electric Railway, [1951] A.C. 601, [1951] 3 D.L.R. 705 (P.C.). In that case, the Privy Council held as follows at pp. 713-14 D.L.R.:

Whether the assessment of damages be by a Judge or a jury, the Appellate Court is not justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case at first instance. Even if the tribunal of first instance was a Judge sitting alone, then, before the Appellate Court can properly intervene, it must be satisfied either that the Judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage (Flint v. Lovell, [1935] 1 K.B. 354, approved by the House of Lords in Davies v. Powell Duffryn Associated Collieries Ltd., [1942] A.C. 601). The last-named case further shows that when on a proper direction the quantum is ascertained by a jury, the disparity between the figure at which they have arrived and any figure at which they could properly have arrived must, to justify correction by a Court of Appeal, be even wider than when the figure has been assessed by a Judge sitting alone. The figure must be wholly "out of proportion" (per Lord Wright, Davies v. Powell Duffryn Associated Collieries, Ltd. at p. 616).

43In Koukounakis v. Stainrod (1995), 23 O.R. (3d) 299, 12 M.V.R. (3d) 78 at pp. 305-06 O.R. (C.A.), Doherty J.A. confirmed the appropriate degree of deference in the case of jury assessments of non-pecuniary damages, and explained how the standard of review is to be applied:

Appellate courts do not decide whether a jury made the "correct" award for general non-pecuniary damages, but only whether the award is "beyond the scope of anything that could be accepted as reasonable". . . . Review for reasonableness, as opposed to correctness, demands not only deference to the amount awarded, but also deference to the findings of fact underlying the award. . . . In so far as the verdict does not reveal findings of fact relevant to the assessment of general non-pecuniary damages, this court should assume that the jury made all findings of fact reasonably available to it and capable of supporting its assessment. Where, as here, the defendant claims that the award is too high, that claim must be judged by reference to the relevant factual findings, if any, implicit in the jury's verdict, combined with any other findings of fact reasonably available to the jury and capable of supporting the plaintiff's claim for general non-pecuniary damages. [page593]

44As a preliminary matter, although the final award in this case involved the trial judge's intervention by reducing the jury's assessment to the cap amount, in my view that amount should be considered as the jury's assessment for the purposes of review. The judge was not substituting his own assessment, but simply correcting the jury's assessment to conform with a legal rule, as required by ter Neuzen.

45As the trial judge was correct in principle in reducing the jury's assessment to conform with the cap amount, the task is to apply the principles outlined in Koukounakis to that amount of $274,000. Here, the jury's verdict does not reveal relevant findings of fact, so in the first instance, the court "should assume that the jury made all findings of fact reasonably available to it and capable of supporting its assessment". In my view, it was reasonable in this case for the jury to find as a fact that Mr. Padfield suffered a great deal of physical pain as a result of the accident. It was also reasonable for them to find that the accident was causally related to Mr. Padfield's ongoing pain and to his diminished capacity to play volleyball, notwithstanding the evidence of his pre-existing condition. In Koukounakis, where the plaintiff also had pre-existing medical problems that might or might not have contributed to her post-accident "lot in life", Doherty J.A. held that it was for the jury to choose between competing views, and that the court should assume that the jury made the finding most favourable to the plaintiff.

46Similarly, although it may be doubtful whether, but for the accident, Mr. Padfield would have had the opportunity to play on the national volleyball team, receive a scholarship to an American school and/or play volleyball in a professional capacity, there was some evidence, if accepted by the jury, that could have supported that conclusion, and this court should, therefore, again assume that the jury made the finding most favourable to Mr. Padfield. It was reasonable, further, for the jury to find that playing volleyball at an elite level was for Mr. Padfield an important dream.

47Having made these assumptions of the jury's findings of fact, the next step is to decide whether their assessment (in this case, as corrected by the trial judge), was, with reference to those findings, "beyond the scope of anything that was reasonable". As noted in Koukounakis at pp. 308-09 O.R., a comparison of an award with amounts assessed in other cases is useful in measuring its fairness; indeed, part of the impetus for imposing a cap in Andrews was to promote consistency and uniformity in non-pecuniary damage awards. As acknowledged by the court in Koukounakis, though, it must be kept in mind that comparative analysis with damage awards in other cases offers only limited assistance, because the [page594] emphasis in assessing non-pecuniary damages in Canada is on the effect of the injury on the particular plaintiff.

48The appellants' factum refers to a number of cases involving either similar injuries or plaintiffs who were, like Mr. Padfield, competitive athletes before their injuries. These cases, which might or might not be representative, resulted in general damage awards well below $274,000, even adjusting for inflation. The highest award, a 1991 case, was $80,000. In addition, the parties, in their exchange of several offers to settle, did not contemplate damages in the range of $274,000. At the high end, they ranged from the appellants' offer of $97,000 to the respondent's offer of $125,000. Although it would not be proper for a trial judge or a jury to consider offers to settle, it is not inappropriate for an appellate court to do so in reviewing an award of damages made at trial. However, I would observe that in his factum the respondent contends that if his loss of opportunity to play professional volleyball is taken into account as an element of the loss of amenities of life, this could be justification for assessing general damages at the higher end of the range of damages in similar cases, while conceding that this factor would not have the effect of exceeding the cap.

49In my view, even with the assumption of facts most favourable to the plaintiff, including the importance to him of his dream of playing volleyball at an elite level, and keeping in mind the limitations of a comparative analysis, $274,000 is an inordinately high amount to award to Mr. Padfield as "reasonable solace for his misfortune". I conclude, therefore, that the jury's assessment, as adjusted by the trial judge, cannot stand.

5. Should a new trial be ordered, or should the court substitute its own assessment of damages?

50As I have concluded that an award of general damages of $274,000 is excessive and cannot stand, the issue becomes whether a new trial for the assessment of damages should be ordered or whether we should substitute our own assessment of damages as permitted by s. 119 of the Courts of Justice Act. Although the appellants have asked for a new trial, they do not take exception to this court substituting its own assessment. The respondent, on the other hand, urges that this court assess his damages to avoid the delay and expense of a new trial.

51Prior to 1989, where an appeal court in Ontario set aside a jury's assessment of damages, the common law did not permit the court to substitute its own assessment without the consent of counsel; in such circumstances, the court had no choice but to order a new trial: see Sikora v. Asbestonos Corp., [1975] 1 S.C.R. 115, 45 D.L.R. (3d) 715; [page595] Walker v. CFTO Ltd. (1987), 59 O.R. (2d) 104, 37 D.L.R. (4th) 224 (C.A.).² Since the introduction of what is now s. 119 of the [Courts of Justice Act]³, however, both options have been open to appeal courts in personal injury cases as a matter of statute. Section 119 gives an appeal court the power to substitute its own assessment of damages in a personal injury case, where the court "considers it just" to do so.

52On at least four occasions since the introduction of s. 119 this court has substituted its own assessment of damages in personal injury cases pursuant to that provision. In To v. Toronto Board of Education (2001), 55 O.R. (3d) 641, 204 D.L.R. (4th) 704 (C.A.), and Etmanski v. Magnum Glass Inc., [1998] O.J. No. 4057 (QL) (C.A.) (an endorsement), the court made a substitution on the basis that on the evidence the amount assessed by the jury at trial was inordinately high. In MacKinnon v. Western Fair Assn., [1993] O.J. No. 472 (QL) (C.A.) (an endorsement), the court was asked to give its own assessment of damages where the amount assessed by the jury was greater than the amount claimed and the trial judge who had no alternative, entered judgment for the amount claimed. This court reduced the damages. In Hutton v. Way (1997), 105 O.A.C. 361, [1997] O.J. No. 4755 (QL) (C.A.), although this court found the damages to be excessive, the court concluded that since certain evidence was improperly admitted the relief would ordinarily be a new trial, but substituted its own assessment for damages because that was the remedy sought by the respondent.

53At the same time, an appeal court has the general power to order a new trial in a case before it, pursuant to s. 134(1) (a) of the Courts of Justice Act. The test for determining whether to order a new trial is found in s. 134(6), which requires that there be "some substantial wrong or miscarriage of justice". On two occasions since the introduction of s. 119, an appeal court has ordered a new trial in a personal injury case solely for the purpose of reassessing damages, despite the availability of the option to substitute under s. 119. In Alderson v. Callaghan (1998), 40 O.R. (3d) 136, 21 C.P.C. (4th) 224 (C.A.), this court declined to substitute its own assessment pursuant to s. 119 and ordered a new trial where the trial judge's instruction to the jury on the issue of contributory causation was held to have been incorrect. In Smilovsky v. Cartwright (2001), 6 C.P.C. (5th) 381 (Ont. Div. Ct.), the Divisional Court [page596] ordered a new trial on damages on the basis that the jury's answer to one of the factual questions posed to it was legally perverse, constituting a substantial wrong or miscarriage of justice. The court in that case, however, did not address the alternate possibility of substituting its own assessment pursuant to s. 119.

54It is difficult to distill governing principles from such a small sample of cases. One conclusion that might be drawn is that appeal courts have ordered (or in the case of Hutton, would ordinarily have ordered) a new trial on the issue of damages where they have identified a legal error. A substitution, on the other hand, has been made where no legal error has been identified, but the amount awarded is found to be inordinately high or low on the evidence. The exception would be Smilovsky, where a new trial was ordered even though no error was found in the conduct of the trial. As mentioned above, however, the court in Smilovsky did not address the alternate of substituting its own assessment.

55The law in England provides some guidance. In that jurisdiction, until recently the common law also required that a new trial be ordered where the parties did not consent to an appellate court assessment of damages: see H. McGregor, McGregor on Damages, 16th ed. (London: Sweet & Maxwell, 1997) at para. 2091. Now, by statute, in any case where the Court of Appeal has the power to order a new trial on the ground that the jury's award was excessive or inadequate, the court may substitute its own assessment of damages.⁴ According to McGregor at para. 2093, however, the power to [page597] substitute is still not available in cases where the court concludes that there has been an error of law, or misconduct by the jury:

[T]he power now given to the Court of Appeal to substitute its own award instead of granting a new trial is confined to cases where the ground for interference is that the jury's award is excessive or inadequate. Where the ground for interference is that there has been misdirection or other error on the part of the trial judge or that there has been misconduct as to damages by the jury, a situation little seen today, the position is unchanged, with no power in the appellate court to substitute its own figure. Even if the result of, say, a misdirection of the trial judge is an award which is too high or too low, the ground for interference is the trial judge's misdirection and not the jury's miscalculation; the excessiveness or inadequacy of the award is only consequential upon the misdirection.

56In my view, there is much to be said for this analysis. Where the fairness of the trial is not in issue, and the jury appears simply to have arrived at an inappropriate assessment on the evidence, the interest in avoiding the delay and expense of a new trial would seem to weigh in favour of the appeal court substituting its own assessment.⁵ Conversely, a new trial is likely more appropriate where errors in the conduct of the trial were such that, had those errors not occurred, there might have been a different outcome. In such cases, an appeal court's assessment of what that outcome would have been would likely require much greater speculation. It might be said, in the language of s. 119, that while it would be "just" to substitute where the jury appears simply to have made an inappropriate assessment, often it will not be "just" to do so where there was a significant error at trial. Rather, in the language of s. 134(6), such an error will often constitute a "substantial wrong or miscarriage of justice", warranting a new trial. Of course, as evidenced by Hutton, an appeal court ultimately maintains the wide discretion under ss. 119 and 134 to grant whatever relief is sought by the successful party.

57Although up to this point it has not entered into my consideration of this appeal, the appellants submit that the trial judge erred in instructing the jury on the nature of general damages. They submit that the trial judge erred in the following elaboration of the respondent's loss of his ability to enjoy the normal amenities of life:

The ability to enjoy the normal amenities of life. You will consider to what extent the plaintiff is unable and will be unable to enjoy the normal social [page598] routine of life which would be enjoyed by a person of his age and the loss of the ability to pursue a U.S. scholarship.

(Emphasis added)

58The appellants contend the italicized language of this instruction may account for the jury's assessment of $500,000 general damages as the jury may have understood from it that as an element of general damages they could include their view of the income loss by the respondent because he was not able to pursue a professional volleyball career. I do not agree.

59In my view, read as a whole the trial judge's instructions to the jury on the assessment of general non-pecuniary damages are impeccable. Indeed, no objection to this instruction was taken by trial counsel. It is clear that the impugned passage was not an invitation to the jury to consider, as an element of the respondent's general damages, the respondent's loss of any financial benefits that may have come his way had he received a scholarship to a U.S. college. As I have indicated, this instruction was merely an elaboration of the trial judge's earlier explanation of the meaning of a person's loss of ability to enjoy the normal amenities of life as a result of injuries caused by a defendant's negligence. As such, it was in conformity with what this court said in Payne at p. 608 O.R., which I have quoted in para. 33. Moreover, the trial judge made it quite clear to the jury that general non-pecuniary damages were not intended to compensate the respondent for his financial loss.

60As there was no error in the trial judge's instruction to the jury on general non-pecuniary damages, it is open to this court to substitute its own assessment of damages. There is no doubt that this is the desirable course to follow to avoid the delay and expense of a new trial, as well as to achieve the goal of judicial economy.

61In his opening argument, counsel for the appellants suggested a range of $100,000 to $115,000 if we were inclined to assess the respondent's general damages. In reply, he conceded that this range was too low, and proposed a range of $125,000 to $150,000. As I have indicated, an appellate court in reviewing damages is entitled to take into account all findings of fact favourable to the plaintiff reasonably available to the jury and capable of supporting the plaintiff's claim for general damages.

62Mindful that caution is required when using a comparative analysis of damage awards in other cases, I would observe that the cap amount is usually reserved for cases of catastrophic injuries which severely disable the injured plaintiff. The respondent's circumstances are far removed from those of one who has [page599] been severely disabled. He was prepared to accept $125,000 to settle his claim, which is within the range proposed by the appellants. Given that an amount proposed in a settlement offer usually takes into account a number of contingencies, I would assess the respondent's general damages in the amount of $150,000, plus pre-judgment interest and GST, which in my view is an appropriate award for general damages. This award is subject to the statutory deduction.

Result

63For the foregoing reasons, I would allow the appeal with costs, set aside the trial judge's award of damages and vary the judgment to give effect to these reasons. I would dismiss the respondent's cross-appeal with costs. The parties are to address the costs of the appeal by way of written submissions. The appellants are to provide their submissions and their bill of costs to the Senior Legal Officer within 15 days from the release of these reasons. The respondent is to file his submissions within seven days after receipt of the appellants' submissions. The appellants may reply within seven days thereafter.

Appeal allowed; cross-appeal dismissed.

Notes

Powers of the Court of Appeal to award damages

8. -- (1) In this section "case" means any case where the Court of Appeal has power to order a new trial on the ground that damages awarded by a jury are excessive or inadequate.

(2) Rules of court may provide for the Court of Appeal, in such classes of case as may be specified in the rules, to have power, in place of ordering a new trial, to substitute for the sum awarded by the jury such sum as appears to the court to be proper.

R.S.C., Ord. 59, r. 11(4) is the rule that provides for the Court of Appeal to have the power to substitute:

In any case where the Court of Appeal has power to order a new trial on the ground that the damages awarded by a jury are excessive or inadequate, the Court may, instead of ordering a new trial, substitute for the sum awarded by the jury such sum as appears to the Court to be proper; but except as aforesaid the Court of Appeal shall not have power to reduce or increase the damages awarded by a jury.

Footnotes

1. 1The passage quoted above from ter Neuzen might be interpreted as closing off this possibility by describing the cap as a "rule of law" (see S.M. Waddams, The Law of Damages, looseleaf (Aurora, ON: Canada Law Book, 2002) at para. 3.570), but because that question was not argued I will address this issue as if ter Neuzen does not have that effect.
2. 2It does not appear that this had always been the case; in Nance, supra, for example, the Privy Council reduced a jury's award for pecuniary loss.
3. 3Proclaimed in force in December 14, 1989 as part of the Court of Justice Amendment Act, 1989 (No. 2), S.O. 1989, c. 67, s. 4.
4. 4Section 8 of the Courts and Legal Services Act 1990 (U.K.), 1990, c. 41 reads, in relevant part:
5. 5Although the legislative debates surrounding the bill that introduced what is now s. 119 shed no light on the matter, it is likely that the provision was designed to address this interest by creating an exception to the common law prohibition on substitution in such cases.