DATE: 20031208

DOCKET: C37718

COURT OF APPEAL FOR ONTARIO

RE:

TERESA DiGIORGIO, CAMELLA DiGIORGIO and ANTONIO DiGIORGIO (Plaintiffs/Respondents) –and–

DAVID MATCHETT and YORK REGIONAL TOWING (Defendants/Appellants)

BEFORE:

CATZMAN, DOHERTY and LASKIN JJ.A.

COUNSEL:

Vern Rogers

for the appellants

Geoffrey Adair and Nicole Bucher

for the respondents

HEARD AND ENDORSED:

December 8, 2003

On appeal from judgment of Justice Frank K. Roberts of the Superior Court of Justice, sitting with a jury, dated January 17, 2002.

A P P E A L B O O K E N D O R S E M E N T

[1] We called upon the respondents to reply only to the argument respecting the size of the general damage award.

[2] In our view, the challenged “lay” evidence adduced by the respondents had relevance, given the theory of the respondent’s claim for loss of future income. If the jury accepted her theory that she would have gone on to work as a hair colourist but for the accident, that evidence could assist in quantifying that claim.

[3] Given that the evidence had some relevance, we are not satisfied that it had a distorting prejudicial effect. The jury’s assessment does not suggest that it was overwhelmed by the size of the numbers given in that evidence. The trial judge’s review of the evidence was factually correct and the charge was adequate, a fact that is substantiated by the absence of any objection by appellants’ counsel at trial.

[4] On the question of general damages, we acknowledge that the jury clearly accepted the plaintiff’s evidence about the impact of the accident upon her. Having said that, the amount of the award is, in our view, inordinately high, particularly when viewed against the figures suggested to the jury by counsel and by the trial judge. We would set aside the jury’s award for general damages and substitute an award of $125,000.00.

[5] The appeal is allowed to the extent of the reduction in general damages indicated above but is otherwise dismissed. The appellants are entitled to their costs of the appeal but, having regard to the divided success on the arguments advanced before us in the hearing of the appeal, we would fix those costs in the amount of $10,000, inclusive of disbursements and G.S.T.