Rizzi v. Marvos, 2008 ONCA 172

CITATION: Rizzi v. Marvos, 2008 ONCA 172

DATE: 20080311

DOCKET: C44688

COURT OF APPEAL FOR ONTARIO

LASKIN, LANG and JURIANSZ JJ.A.

BETWEEN:

DEBBIE RIZZI and DELIO RIZZI

Plaintiffs (Appellant)

and

GEORGE MARVOS and THOMAS PARTALAS

Defendants (Respondents)

Karl Arvai and Chris Nicolis for the appellant

Douglas A. Wallace for the respondents

Heard: October 30, 2007

On appeal from the judgment and order of Justice T. David Little of the Superior Court of Justice dated December 2, 2005 and January 6, 2006 respectively.

LANG J.A.:

OVERVIEW

[1] The appellant, Debbie Rizzi, appeals from the judgment of Little J. following a seventeen-day jury trial. The jury assessed damages against the respondents, George Mavros and Thomas Partalas, who were Ms. Rizzi’s landlords, on the basis that their improper storage of construction materials in the storage/laundry room of the apartment building led to[^1] the appellant’s accident and consequent injuries.

[2] The appellant was awarded damages of $236,494.91, including pre-judgment interest. The award included $41,000 for general or non-pecuniary damages, $17,400 for special damages, $660,500 for loss of past and future income and $160,000 for future care costs. The jury found the appellant seventy-five per cent contributorily negligent in attempting to move the materials and her award was reduced accordingly.

[3] The appellant challenges the trial judge’s instructions to the jury on the law regarding non-pecuniary damages, contributory negligence and the apportionment of fault. Alternatively, the appellant argues that the jury’s finding on each of these issues is unreasonable. The appellant also appeals the costs order. The respondents argue that the trial judge correctly instructed the jury regarding the relevant law, the jury awards were supported by the evidence and the trial judge made no error in exercising his discretion regarding costs.

[4] In my view and for the reasons that follow, I conclude that the trial judge erred in instructing the jury to assess the appellant’s non-pecuniary damages on a scale using the upper limit or cap as a maximum. However, I would find no error in the charge regarding contributory negligence or apportionment.

[5] The erroneous instruction regarding the cap would ordinarily require a new trial. However, in this case, the jury award indicates the jury accepted the appellant’s credibility. Since this makes possible an assessment of the extent of her pain and suffering, I would not order a new trial. Rather, I would substitute a damages assessment of $80,000 for non-pecuniary damages. I would reduce the challenged costs award by $5,500.

FACTS

[6] The appellant was a thirty-two-year old dental hygienist who alleged that a leg injury caused neuropathic pain that evolved first into complex regional pain syndrome and later into fibromyalgia. The appellant alleged that the fibromyalgia eventually prevented her from continuing any employment.

[7] The injury occurred on April 2, 1995. The appellant was attempting to store paint cans in her locker located in the storage room of the respondent’s apartment building. When the appellant first entered the storage room, she observed the metal sheets, each the approximate size of an apartment door, as well as several boxes of construction materials that were lying on the floor between the two rows of lockers. Although there was no urgency, the appellant decided she could store the paint cans by moving the sheets away from the lockers.

[8] The appellant testified that she had some initial concern about cutting her fingers on the sharp, jagged edges of the sheets, but despite this concern, she decided that she could move them safely. Indeed, she succeeded in moving the first sheet easily, but had trouble with the remaining sheets because they were stacked tightly together. She tried to separate them by pulling the sheets towards her, but she was unable to control their weight. They forced her backwards until the heels of her feet came into contact with a surface. She mistakenly assumed this surface to be the second row of lockers. She leaned back for support. Since the surface was actually a box of construction materials, the appellant lost her balance and fell backwards. The metal sheets landed on her legs. She was able to remove her left leg without injury, but as she tried to extricate her right leg, the sharp-edged sheets scraped her shin, causing immediate pain.

[9] The appellant was taken to hospital, where she was treated for her injuries and instructed to take two days of rest. She subsequently consulted her family doctor. The appellant could not bear weight on her leg for about two weeks. She developed pain in her leg and an area of extreme sensitivity to touch, a condition known as allodynia.

[10] After two weeks, the appellant returned to work, but she found it necessary to bear much of her weight on her left leg, which led to low back pain. The appellant started to suffer from fatigue because she was unable to sleep properly. She pursued treatment, including consultations with physiatrists, an orthopaedic surgeon, physiotherapists, chiropractors, a shiatsu specialist, an acupuncturist and a naturopath.

[11] A year after the accident, Dr. Teasell, a physiatrist, diagnosed neuropathic pain in the appellant’s leg, which resulted from damage to the appellant’s peripheral nerves. This diagnosis was subsequently confirmed by a neurologist, but no treatment was available.

[12] The appellant testified that she eventually developed generalized pain throughout her entire body resulting in continued sleeplessness, fatigue and ultimately depression. By the end of 1997, the appellant had stopped working and has not resumed employment since, except for her unsuccessful efforts to do so on a part-time basis from 2000 to 2003.

[13] In 2003, Dr. Teasell diagnosed post-traumatic fibromyalgia, a diagnosis confirmed by other specialists. Dr. Chaiton, a rheumatologist, also diagnosed the appellant with complex regional pain syndrome. The medical evidence called by the appellant indicated that she was “quite significantly impaired” and that her condition would likely get worse with age.

[14] The respondents’ expert physiatrist and rheumatologist, Dr. Gyenes, testified that, in her opinion, the appellant did not meet the criteria for a diagnosis of either complex regional pain syndrome or fibromyalgia. She pointed to inconsistencies in the appellant’s presentation, including the unexplained absence of muscle atrophy in her right leg. It was Dr. Gyenes’ view that profound muscle atrophy would normally be evident in light of the appellant’s clinical history and the severity of her reported symptoms. Dr. Gyenes also questioned the extent of the appellant’s reported allodynia because the appellant was able to wear trousers and apply a depilatory cream to her leg.

[15] It was the appellant’s position at trial that she had led a full and satisfying life before the accident, including active participation in sports. She attributed all her post-accident difficulties to the injury to her shin. However, evidence presented at trial indicated that the appellant suffered a pre-existing wrist injury. A week before the accident, she reported to her physiotherapist that she was experiencing “more pain” in her right arm and wrist and that the right wrist had become hypersensitive to touch. The physiotherapist made a treatment note querying whether the appellant was suffering from complex regional pain disorder. However, the evidence at trial indicated the appellant had sufficient use of her wrist around the time of the accident to paint her apartment.

[16] Although treatment for the leg injury was suspended some months after the incident, the appellant reported ongoing wrist pain that had spread to her right arm, shoulder and neck. Physiotherapy for her upper body complaints continued for a further year. After that, the appellant related her ongoing complaints exclusively to the shin injury.

JURY VERDICT

[17] At trial, the appellant urged the jury to award pecuniary damages in the amount of $1,484,862, plus an unspecified amount for non-pecuniary damages. The respondents argued that any ongoing injury was related to the wrist injury and damages for the leg injury should be assessed at $10,000 to $15,000. The jury assessed non-pecuniary damages at $41,000 and pecuniary damages at $837,900.

[18] The jury answered the questions put to them as follows:

1. Did the defendants take such care as in all the circumstances of the case was reasonable to see that the plaintiff was reasonably safe?

Answer: No

2. If the answer to Question 1 is “No” list clearly the particulars of the defendants’ failure to care.

Answer:

• Failed to store the sheets where the tenants could not access them

• Failed to give tenants warning that the locker room will be closed for a certain length of time

• Failed to restrict the access of the locker area.

3. If your answer to Question 1 is “No” did the plaintiff use reasonable care on her own part for her own safety?

Answer: No

4. If your answer to Question 3 is “No” list clearly the particulars of her contributory negligence.

Answer:

• She was negligent by trying to move the panels

• She should have been aware of her own physical limitations – (received 20 treatments for physio for wrist) – prior

• She could of asked for help

• There was no urgency

5. If both plaintiff and defendants are at fault, how do you apportion the degree of fault between the parties?

Answer:

Plaintiff 75%

Defendant 25%

Total 100%

[19] In addition, the jury specifically found the incident caused or materially contributed to the appellant’s condition of fibromyalgia/diffuse pain.

ISSUES

[20] The appellant raises the following issues on this appeal:

1. Did the trial judge correctly charge the jury regarding the assessment of non-pecuniary damages and, if so, was the jury’s assessment so inordinately low as to be unreasonable?

2. Did the trial judge correctly charge the jury regarding contributory negligence and, if so, was the jury’s finding of contributory negligence unreasonable?

3. Did the trial judge correctly charge the jury regarding the apportionment of fault and, if so, was the jury’s apportionment unreasonable?

4. Did the trial judge fail to consider relevant factors or reach an unreasonable conclusion with respect to the costs award?

ANALYSIS

[21] Before examining each of these issues in turn, it is helpful to consider the standard of review.

[22] In this case, the appellants argue that the charge to the jury contained material misdirection or non-direction on the issues of non-pecuniary damages, contributory negligence and allocation of fault. Since the challenged directions involve points of law, the standard of review is one of correctness, bearing in mind that any misdirection or non-direction must be material to the jury’s decision. Jury charges are not to be parsed to a standard of perfection; rather, the question is whether, at the end of the charge, the jury would have properly understood the law: Pereira v. Hamilton Township Farmers’ Mutual Fire Insurance Co., 2006 CanLII 12284 (ON CA), [2006] O.J. No. 1508 at para. 51 (C.A.).

[23] If there is no error of law, the standard of review dictates that a jury verdict will only be set aside as against the weight of the evidence where it is so plainly unreasonable and unjust that no jury, reviewing the evidence as a whole and acting judicially could have reached it: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 30.

1. NON-PECUNIARY DAMAGES

[24] On the contentious issue of the cap, the trial judge instructed the jury:

She is only coming once. It has got to be decided. But you would also say when you look at that, the maximum awards in Canada for a young person who is made a quadriplegic for pain and suffering is just less than $300,000.00. So your range would be somewhere between zero and $300,000.00 for her pain on that item only. That is the maximum. You would have to scale it. [Emphasis added.]

[25] The Supreme Court of Canada has provided direction on the approach to a jury charge about the cap. In ter Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674, Sopinka J., speaking for the majority, noted that the trial judge should not charge the jury on the cap where he or she is of the opinion that the injuries “will not likely produce an award approaching the rough upper limit.” (para. 113) However, the trial judge should instruct the jury about the cap, after considering counsels’ submissions and the type of injury sustained, if he or she is of the opinion that damages may be assessed in a range exceeding that amount. In such circumstances, the instructions “may include an explanation of the reason for the cap.” (para. 112)

[26] David Griffiths, J.W. O’Brien & James D. Carnwath, “General Comments on Conduct of a Civil Jury Trial” in Civil Jury Charges: Draft [unpublished] at 24, distils the principles set out in ter Neuzen for a trial judge preparing a civil jury charge:

i) If the trial judge is of the view that damages are of the type that may be assessed in the range of, or exceeding, the upper limit the jury should be advised of it and instructed that their assessment for non pecuniary damages should not exceed that amount.

ii) If the charge is to instruct on the upper limit, it should include an explanation of why there is such a limit. He [Sopinka J.] suggests the jury be told the imposition of an upper limit may seem somewhat arbitrary, but it has been established by the courts to deal with those cases in which there will be full compensation for lost income, future care and future income loss the award for non pecuniary damages has been limited to include compensation for the misfortune suffered, loss of enjoyment of life and for the pain and suffering involved.

iii) If the judge is of the view the injuries will not likely approach that upper limit, it is best that the judge not charge the jury on that matter.

[27] Accordingly, the first question is whether the damages in this case could have been assessed at or near the cap. This is somewhat difficult to answer contextually because this court was not provided with either a transcript of any pre-charge conference or with trial counsels’ submissions to the jury.

[28] However, we do know that, although the appellant’s counsel did not suggest any particular amount or range for non-pecuniary damages, he argued that the appellant’s injuries included fibromyalgia that prevented her from working and precluded her from engaging in many of her normal physical and social activities. Further, in his objection to the charge about using the cap as a scale, the appellant’s counsel argued that the jury could decide that the appellant’s damages exceeded the cap.

[29] If the trial judge did not accept that damages could be awarded at or near the cap, the proper position would have been to refrain from charging the jury regarding that limit. However, in light of the evidence and the position of the appellant’s trial counsel, I conclude that the trial judge was of the view that non-pecuniary damages could be awarded at or near the cap and, for this reason, decided to instruct the jury on that issue.

[30] In providing this instruction, the appellant argues that the trial judge erred in directing the jury to use the cap as a scale from which to measure damages. In support of this objection, he relies on the decision of this court in Koukounakis v. Stainrod (1995), 1995 CanLII 621 (ON CA), 23 O.R. (3d) 299. In that case, the appellants challenged a jury assessment of non-pecuniary damages arguing that it was so high as to be unreasonable. In explaining the reasons why non-pecuniary damages cannot be assessed on a scale using the cap as a maximum, Doherty J.A. said:

The judicially imposed upper limit on general non-pecuniary damages offers some assistance in determining the appropriateness of a particular award. The appropriateness of an award, however, cannot be determined by comparing the level of disability or pain and suffering suffered by a particular plaintiff to that of a person entitled to the maximum award: Howes v. Crosby, supra, at p. 460. The upper limit serves to cap the potential award for general non-pecuniary damages. It is in large measure an arbitrary figure fixed in response to policy concerns, and on the assumption that awards made under other heads of damage will largely achieve the compensation goal: Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229 at pp. 260-61, 83 D.L.R. (3d) 452. (at p. 308) [Emphasis added.]

[31] In Howes v. Crosby (1984), 1984 CanLII 2172 (ON CA), 45 O.R. (2d) 449 at 460 (C.A.), MacKinnon A.C.J.O., in concluding that the cap would have no relevance in the non-pecuniary damages assessment for most jury trials, emphasized that the cap “is not to be used as a scale against which all non-pecuniary claims for other injuries are to be measured.”

[32] Assuming that it is appropriate to instruct a jury on the cap, and recognizing that such an instruction runs the risk of a direct comparison between the damages in the particular case with those that merit an award at the cap, a trial judge must explain to the jury that such a comparison is not appropriate. In particular, the trial judge must explain that the cap is not to be seen as the upper end of a range of damages awards, but rather that the cap was established for the policy reasons discussed in Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229 at pp. 260-61[^2]. In that case, Dickson J. explained that a jury will not attempt to set a value on the loss of a plaintiff’s function, because that function cannot be restored. Nor, for the same reason, will the award be assessed on the basis of the value of lost happiness. Rather, an award will be determined that provides the plaintiff with the ability to make more general arrangements, beyond those relating directly to the injuries, so that his or her life will be more endurable. Those arrangements will aim to alleviate the plaintiff’s misfortune by allowing him or her to live as tolerably as possible.

[33] In quantifying non-pecuniary damages, the jury should understand that the rough upper limit reflects the reality that no amount of money can compensate for the plaintiff’s loss of quality of life or his or her pain and suffering. A cap on non-pecuniary damages was imposed for policy reasons relating to the heavy financial burden that otherwise would result from excessive awards. In these circumstances, it would be wrong to use the cap to compare a particular plaintiff’s injuries to that of a person entitled to the cap.

[34] Further, a jury told about the cap generally must also be told that its assessment of pecuniary damages is paramount, because it is those damages that give the plaintiff the funds to compensate for lost income and to provide for future care. The assessment of the plaintiff’s non-pecuniary damages differs because it is a philosophical and policy exercise that, although necessarily arbitrary, must be in an amount that is reasonable and fair both to the plaintiff and to society as a whole.

[35] In this case, the jury was not instructed on the policy reasons for the cap. Moreover, it was told to use the cap as a scale and to compare the appellant’s injuries to those of a young quadriplegic. This instruction was in error, as was the trial judge’s refusal to re-instruct the jury after the appellant’s objection to this aspect of the charge.

[36] I will consider the appropriate remedy after considering the other grounds of appeal.

2. CONTRIBUTORY NEGLIGENCE

[37] On the question of contributory negligence, the trial judge charged the jury as follows:

Now, you have to decide that she would be negligent in failing to take reasonable care for her own safety. This time the onus rests on the Defendants. Negligence here means doing something that a reasonably prudent person would not do, or the failure to do something that a reasonably prudent person would do; and you have to look at the circumstances of this case. The standard of care upon which you base that is the conduct of an average person. It is not an extraordinary conscientious person, it is not an excessively skilled person, but a reasonable person exercising average ordinary prudence. You must decide if – whether a reasonably prudent person would have exercised or taken care of her own safety in the circumstance – in that matter.

[38] The appellant’s counsel did not object to this part of the charge at trial. The absence of an objection suggests that the issue was not seen as central to the jury’s deliberations. However, on appeal, the appellant argues the trial judge ought to have instructed the jury to consider whether the appellant subjectively foresaw the consequences of her action, including the mechanism by which the accident would occur and the risk of the injury that she would suffer. The appellant argues that this was important because, while the appellant recognized the risk of cutting her fingers on the sheets, she did not foresee either the possibility of the sheets knocking her over or the injury to her shin.

[39] The appellant’s argument rests on Avco Financial Services Realty Ltd. v. Norman (2003), 2003 CanLII 47436 (ON CA), 64 O.R. (3d) 239 (C.A.). At para. 26 of that decision, Charron J. quotes Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., 1997 CanLII 307 (SCC), [1997] 3 S.C.R. 1210 at para. 76 regarding the foreseeability element for contributory negligence:

The test … was summarized by Denning L.J. in Jones v. Livox Quarries Ld., [1952] 2 Q.B. 608 (C.A.), at p. 615:

Although contributory negligence does not depend on a duty of care, it does depend on foreseeability. Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless. [Emphasis added.]

[40] The appellant relies on the emphasized sentence to argue that subjective foreseeability is an essential component of contributory negligence.

[41] The flaw in the appellant’s argument is that the reference to foreseeability of harm to oneself is immediately qualified by reference to the standard of a “reasonable, prudent” individual. Considered together, it is clear that the court endorses an objective and not a subjective analysis of foreseeability.

[42] Further, in Bow Valley, McLachlin J. specifically provides that foreseeability of the “precise type of damage or sequence of events” resulting from the negligence is not necessary (at para. 76).[^3] This point is reinforced in Avco, at paragraph 32, where the court notes that “the injured party will be guilty of contributory negligence if it ought to have foreseen that it may harm itself by failing to act reasonably and prudently”.

[43] Accordingly, a party is negligent (in this case, contributorily negligent) if she objectively ought to have foreseen that she might injure herself. The objective test is implicit in the trial judge’s charge, which included a number of references to the reasonable person and to reasonable care. A reasonably prudent person, by definition, considers whether a course of action might result in harm.

[44] Since the appellant specifically acknowledged that she subjectively appreciated there was a risk of cutting her fingers on the metal sheets while moving them, it was not necessary for the respondents to establish that she also foresaw either the mechanism by which the accident would occur or the nature of the injury that could result. Accordingly, I cannot accept this ground of appeal.

APPORTIONMENT OF FAULT

[45] The trial judge charged the jury regarding apportionment of fault in these words:

Then you get down to Question Number Five and you say, if both the plaintiff and the defendants are at fault, how do you apportion the degree of fault between the parties? That can go from zero to 100 in each case, and you would decide. You would say that this incident would not have occurred but for, and you would apportion it. The total has to come to 100. So you would total it right in there and it would total 100 and you would attribute it. [Emphasis added.]

Once you have done that, that is all for “who is responsible”. You forget about that now. The Court will deal with the apportionment of percentages that you find.

[46] The appellant argues that this “but for” reference imports a causation analysis into the instruction, rather than one based on the parties’ respective degrees of fault or blameworthiness.

[47] The Negligence Act, R.S.O. 1990, c. N.1, s. 3 provides:

In any action for damages that is founded upon the fault or negligence of the defendant if fault or negligence is found on the part of the plaintiff that contributed to the damages, the court shall apportion the damages in proportion to the degree of fault or negligence found against the parties respectively.

[48] A plain reading of this provision requires apportionment based on the “fault or negligence” of each party, rather than on the basis of causation. It would be in error to apportion liability on the degree to which the appellant or the respondents caused the damages.

[49] The appellant relies on Snushall v. Fulsang (2005), 2005 CanLII 34561 (ON CA), 78 O.R. (3d) 142 (C.A.), which discussed the distinct issue of the difference between active and passive faults. At paragraph 29 of his reasons, in distinguishing between fault and causation, Juriansz J.A. refers to Cempel v. Harrison Hot Springs Hotel Ltd. (1997), 1997 CanLII 2374 (BC CA), 43 B.C.L.R. (3d) 219 (B.C.C.A.) at para. 19, where Lambert J.A. emphasized that the Negligence Act “does not say that the apportionment should be on the basis of degree to which each person’s fault caused the damage”. Lambert J.A. concluded “we are not assessing degrees of causation, we are assessing degrees of fault. In this context, "fault" means blameworthiness.”

[50] Since apportionment relates to fault or blameworthiness, it would have been preferable if the trial judge had avoided “but for” terminology, which evokes causation principles for those familiar with tort principles. However, a jury is not familiar with tort principles. Moreover, the challenged charge must be considered in its context and not subject to abundant parsing.

[51] Importantly, the trial judge specifically instructed the jury to “apportion the degree of fault.” He did not direct the jury about causation in respect of apportionment. Indeed, causation was a matter separately addressed in another part of the charge using the different language of material contribution. In this context, the jury would have taken the “but for” reference to refer to the negligence of the parties and not to the causation of the injuries.

[52] Further, after the “but for” terminology, the trial judge immediately told the jury to attribute “it” out of 100, referring back to his instruction about the parties’ relative degrees of fault.

[53] Moreover, the question put to the jury was both correctly phrased and specific: “If both plaintiff and defendants are at fault, how do you apportion the degree of fault between the parties?” Importantly, the jury had this precise question with it in written form in the jury room when it assessed the parties’ respective degrees of fault and determined that the moral blameworthiness of the appellant was greater than that of the respondents.

[54] Finally, I am not persuaded that the jury’s apportionment of seventy-five per cent of blame to the appellant indicates that it was misled by the trial judge’s charge. The appellant has submitted a number of cases where contributory negligence is assessed at twenty-five per cent. However, each of these cases involves circumstances in which the defendant was the “prime cause” of all the damage or “wholly responsible” for the negligent act and the injured plaintiff only “contributed” to the damages he or she suffered. This is consistent with Snushall v. Fulsang at para. 35, in which Juriansz J.A. concluded that, “contributory negligence, solely for failing to wear a seatbelt, should not exceed 25 per cent.” See also Heeney v. Best (1979), 1979 CanLII 2084 (ON CA), 28 O.R. (2d) 71 (C.A.).

[55] While high, seventy-five per cent is not outside the range available on the evidence. The same apportionment was allotted in Hunt (Litigation Guardian of) v. Sutton Group Incentive Realty Inc. (2001), 2001 CanLII 28027 (ON SC), 52 O.R. (3d) 425 (S.C.J.), on the basis that the plaintiff was largely the author of her or his own misfortune for drinking and driving, and in Kennedy v. Waterloo County Board of Education (1999), 1999 CanLII 3746 (ON CA), 45 O.R. (3d) 1 (C.A.), for the negligent operation of a motorcycle in a schoolyard. See also Rutherford v. Niekrawietz, [1994] O.J. No. 2439 (Gen Div.) and Brown v. Gravenhurst, [1995] O.J. No. 561 (Gen. Div.).

[56] Importantly in this case, the jury made specific findings about the negligence of both the appellant and the respondents. The jury determined that the respondents were negligent in failing to restrict access to the room in which the sheets were stored and in failing to warn the tenants that they would not have access to that room. However, the jury found that the appellant was negligent in trying to move the sheets when aware of her own limitations and in a situation where there was no urgency and where she could have asked for help. These findings support the jury’s determination that the appellant was the author or her own misfortune and that her blameworthiness was greater than that of the respondents’.

[57] Accordingly, in my view, at the end of the charge the jury properly understood the law. Although another jury may have assessed the degrees of negligence differently, this jury’s verdict is entitled to deference. I see no basis to interfere with its conclusion.

REMEDY

(a) Discretion to substitute damages award

[58] Since I have concluded that the award for non-pecuniary damages cannot stand based on an error of law, I must now determine the appropriate remedy. The appellant asks this court to substitute its own assessment of damages as permitted by the Courts of Justice Act, R.S.O. 1990, c. C.43, s. 119, which provides that “[o]n an appeal from an award for damages for personal injury, the court may, if it considers it just, substitute its own assessment of the damages.” In arguing that it is in the interests of justice for this court to substitute its own assessment of damages, the appellant emphasizes the amount of time that has passed since the date of the accident. In oral argument, the respondent took the position that a new trial is necessary.

[59] In Padfield v. Martin (2003), 2003 CanLII 36239 (ON CA), 64 O.R. (3d) 577 at para. 56 (C.A.), Borins J.A. observed that an appellate court may refuse to substitute its own assessment and instead order a new trial where there has been an error of law. He noted that an appellate court would likely substitute its own assessment of damages where the fairness of the trial is not an issue and the jury simply reached an inappropriate assessment. However, a new trial is likely where errors in the conduct of the trial may have affected the outcome. Often, he said, it would not be just for an appellate court to substitute its own assessment if the error constitutes a substantial wrong or miscarriage of justice that otherwise warrants a new trial. Finally, Borins J.A. concluded that “an appeal court ultimately maintains the wide discretion under ss. 119 and 134 to grant whatever relief is sought by the successful party.”

[60] In my view, the error in this case, while an error of law, is not one that precludes our assessment of damages, particularly when balanced against the difficulties that would be posed by ordering a new trial so many years after the event.

[61] In Pilon v. Janveaux, [2005] O.J. No. 4672 at para. 31, a case regarding the apportionment of liability, this court observed: “[T]he interests of justice require that a new trial be avoided if possible. Memories will be stale, and the cost is prohibitive. Instead, this court should perform the apportionment task that the jury ought to have been instructed to and did not perform.” (para. 31) Similarly in this case, where the incident occurred more than twelve years ago, memories will be stale and a new trial may well not be feasible. In addition to the difficulties inherent in assembling the lay witnesses, the medical witnesses or their records may no longer be available and their recollections of the appellant and her injuries will have faded. In addition, the costs of a new trial are simply not merited in the circumstances of this case.

[62] Moreover, the error in this case, while one of law, does not affect the fairness of the trial or its outcome. Rather, the error goes solely to the amount of the appellant’s non-pecuniary damages. In addition, the jury’s award of pecuniary damages, which is not tainted by any error, provides substantial guidance because it is apparent that the jury believed the appellant’s evidence about the extent of her injuries. As well, it is apparent that the jury rejected the evidence of the respondents that attempted to undermine the appellant’s testimony about her symptoms and condition. In all the circumstances of this case, since credibility is not an issue, a new trial is not necessary.

[63] The jury specifically found that the appellant’s fibromyalgia was caused by the incident. The significant impact of the appellant’s injury is reflected in the award of $660,500 for loss of past and future income and $160,000 for future care costs. Even though the jury did not award the full amount of the appellant’s claim for either category of damages, the damages awarded are still substantial.

[64] In these circumstances, it is just for this court to exercise the wide discretion granted under s. 119 to determine the non-pecuniary damage award.

(b) Assessment of Non-Pecuniary Damage Award

[65] Regarding the amount of non-pecuniary damages, the appellant relies on appellate court authorities from British Columbia, Alberta and Nova Scotia, which upheld jury awards in the range of $100,000 to $200,000[^4]. However, those authorities represent unusually high trial awards to which an appellate court will accord deference.

[66] The respondents argue that the jury award of $41,000 falls within the general assessments of damages for fibromyalgia. For this proposition, they refer to Ontario cases where the awards ranged from $40,000 to $50,000[^5].

[67] However, other Ontario trial decisions have imposed higher damage awards for fibromyalgia. In Deschamps v. Chu, [1997] O.J. No. 2593 (Gen. Div.), the plaintiff was awarded $65,000 non-pecuniary damages following a motor vehicle accident that caused fibromyalgia and chronic pain. In Britt v. Zagjo Holdings Ltd., [1996] O.J. No. 1014 (Gen. Div.), the plaintiff developed fibromyalgia following a slip and fall accident. She was awarded $75,000 in non-pecuniary damages, subject to a twenty-five per cent reduction for her contributory negligence. The court identified the following factors in support of this award: “permanent work disability, constant pain, a disastrous loss of amenities of life, and the prospect of a future life in which she will have to fight to control and cope with her disabled condition.” (para. 46)

[68] A review of more recent Ontario trial decisions indicates awards of non-pecuniary damages for fibromyalgia or chronic pain (a comparable affliction) in a wider range of $55,000 to $120,000. In Latta v. Ontario, [2004] O.J. No. 3751 (S.C.J.), the plaintiff, who was twenty-nine years old at the time of the accident, developed chronic pain syndrome after falling down a flight of stairs. As a result of the injury, he was in pain throughout the day and his activities were seriously restricted. He received an award of $120,000 in addition to his claim for loss of income. That award was upheld on appeal.[^6]

[69] In Peloso v. 778561 Ontario Inc. (c.o.b. J.L. Maintenance Services), 2005 CanLII 21543 (ON SC), [2005] O.J. No. 2489 (S.C.J.), the plaintiff was involved in a motor vehicle accident in which she suffered injuries creating pain and discomfort throughout her body, including a lack of sensation down her leg. General damages were globally assessed at $80,000, although they were reduced to $56,000 for reasons relating to a pre-existing condition and mitigation.

[70] In Hartwick v. Simser, [2004] O.J. No. 4315 (S.C.J.), the plaintiff was awarded general damages of $85,000, following a motor vehicle accident in which she claimed to have suffered permanent and disabling chronic pain in her spine.[^7] The award was subsequently reduced to $63,750 because of a pre-existing condition.

[71] In Nusinowitz v. Ontario (Superintendent of Financial Services), [2005] O.J. No. 2069 (S.C.J.), an eighty-six year old plaintiff was awarded $55,000 in general damages following a motor vehicle accident in which he developed chronic pain syndrome.

[72] Based on these awards, the evidence regarding the impact of the appellant’s injuries, and in light of the guidance I take from the jury’s determination about the appellant’s credibility, I would assess the appellant’s damages at $80,000. This award is consistent with the jury’s credibility findings that the fibromyalgia was caused by the leg injury and that the appellant’s description of her condition was credible. The award I propose is slightly above the mid-range of awards for debilitating conditions of this nature for a previously active young adult whose employment has been compromised and whose overall life has been seriously affected. This amount must be reduced by seventy-five percent, in accordance with the jury’s findings regarding apportionment of fault. This leaves the appellant with a $20,000 award for non-pecuniary damages.

COSTS

[73] In the event that the costs appeal has not been rendered moot by the increased award for non-pecuniary damages, I turn to consider the appellant’s appeal of the costs awarded to the respondents for the period subsequent to their offer of settlement.

[74] I begin by noting that a court will not interfere with a costs award unless there is an error in principle or the award is plainly wrong. See Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303 at para. 27. In this case, I see no basis upon which to interfere with the trial judge’s costs award with one exception regarding a disbursement for an expert report. In my view, the $5,500 disbursement for the PriceWaterhouseCooper report must be disallowed because the report was not supplied to the appellant as contemplated by item 26 of Tariff A.

[75] I cannot accept the appellant’s other challenges to the award. The appellant argues that the award effectively allowed costs on a substantial indemnity scale contrary to the decision of this court in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291. While there was not a significant difference between the substantial and partial indemnity rates put forward by counsel in this case, the situation is not akin to Boucher, where counsel charged the same rate for both scales of costs.

[76] Nor do I see any basis upon which to interfere with the trial judge’s careful conclusion on the other issues raised by the appellant. In particular, I see no error in the trial judge’s decision that the trial was not unnecessarily prolonged by the defence or that the voir dire regarding the causal link between the leg injury and fibromyalgia was necessary. Clearly the question about the connection between the injury and the appellant’s complaints was the primary point of controversy at trial and it was entirely within the discretion of the trial judge to include costs for the voir dire and the defence expert witnesses in his award to the respondents.

RESULT

[77] In the result, I would allow the appeal and vary paragraph 1 of the judgment to accord with an assessment of non-pecuniary damages of $80,000. I would reduce the costs of the trial awarded to the respondents by $5,500. I would otherwise dismiss the appeal. The appellant, who was successful on the significant issue of the charge on non-pecuniary damages would be entitled to costs of the appeal, which I would fix at $15,000, inclusive of disbursements and Goods and Services Tax.

“S.E. Lang J.A.”

“I agree R.G. Juriansz J.A.”

LASKIN J.A. (dissenting in part)

A. OVERVIEW

[78] I agree with the judgment of Lang J.A. except on one issue: the trial judge’s charge to the jury on apportionment of fault. The jury found the respondents (the “landlord”) negligent and the appellant Debbie Rizzi contributorily negligent. The jury was therefore required to apportion their respective degrees of fault. In my opinion, the trial judge’s instruction on apportionment amounted to a legal error because he invited the jury to apportion fault on the basis of causation instead of blameworthiness. That error was material and thus warrants appellate intervention.

[79] The jury apportioned fault for the accident seventy-five per cent to Debbie Rizzi and twenty-five per cent to the landlord. I would reverse those percentages and apportion fault twenty-five per cent to Debbie Rizzi and seventy-five per cent to the landlord.

B. BACKGROUND

[80] Lang J.A. has thoroughly reviewed the facts, so I need not discuss them in detail here. In brief, the landlord left seven to ten thin, large metal sheets and some construction material lying on the floor in the storage area of its apartment building. The top edge of the sheets was sharp and jagged and the sheets themselves blocked access to Ms. Rizzi’s locker. Ms. Rizzi tried to move the metal sheets in order to return some paint supplies to her locker. However, the sheets proved too heavy for her to control. She fell backward against the construction material, and as she tried to extricate herself, the sharp edge of the sheets scraped her right shin. She suffered severe pain, which progressed into a regional pain in her right lower leg, and eventually into disabling fibromyalgia.

[81] On the question of liability, only Ms. Rizzi testified. The defence called no evidence. The jury found both the landlord and Ms. Rizzi negligent and particularized the negligence of each as follows:

(a) The Landlord

• Failed to store the sheets where the tenants could not access them;

• Failed to give tenants warning that the locker room will be closed for a certain length of time; and

• Failed to restrict the access of the locker area.

(b) Ms. Rizzi

• She was negligent by trying to move the panels;

• She should have been aware of her own prior physical limitations (received twenty treatments for physio for wrist);

• She could have asked for help; and

• There was no urgency.

C. THE TRIAL JUDGE’S CHARGE ON APPORTIONMENT

[82] Where both the plaintiff and the defendant are found negligent, s. 3 of the Negligence Act, R.S.O. 1990, c. N.1 requires the court to apportion fault:

In any action for damages that is founded upon the fault or negligence of the defendant if fault or negligence is found on the part of the plaintiff that contributed to the damages, the court shall apportion the damages in proportion to the degree of fault or negligence found against the parties respectively.

[83] The trial judge’s charge to the jury on how to apportion fault according to the Act was brief:

Then you get down to Question Number Five and you say, if both the plaintiff and the defendants are at fault, how do you apportion the degree of fault between the parties? That can go from zero to 100 in each case, and you would decide. You would say that this incident would not have occurred but for, and you would apportion it. The total has to come to 100. So you would total it right in there and it would total 100 and you would attribute it.

Once you have done that, that is all for “who is responsible”. You forget about that now. [Emphasis added.]

[84] Ms. Rizzi submits that the trial judge’s “but for” instruction was wrong because it told the jury to apportion fault on the basis of degrees of causation instead of degrees of blameworthiness. I agree with her submission.

[85] Lang J.A. agrees that fault should be apportioned on the basis of comparative blameworthiness, that is the degree to which each party fell short of the standard of care required of that party. And, she acknowledges, “it would have been preferable if the trial judge had avoided ‘but for’ terminology”. But then she excuses this reference by concluding that the jury would still have correctly understood its task. In my view, in the context of this charge, the “but for” instruction was a reversible legal error because it likely misled the jury on the proper approach to apportionment.

[86] The principle of apportioning fault on the basis of comparative blameworthiness, not comparative causation, has been approved by this court, by most academics, and by other provincial appellate courts in Canada. See for example Martin v. Listowel Memorial Hospital (2000), 2000 CanLII 16947 (ON CA), 51 O.R. (3d) 384 (C.A.); Mortimer v. Cameron (1994), 1994 CanLII 10998 (ON CA), 17 O.R. (3d) 1 (C.A.); Lewis N. Klar, Tort Law, 3d ed. (Toronto: Thomson Carswell, 2003) at 467; John G. Fleming, The Law of Torts, 9th ed. (North Ryde, NSW: LBC Information Services, 1998) at 306-309; Alberta Wheat Pool v. Northwest Pile Driving Ltd. (2000), 2000 BCCA 505, 80 B.C.L.R. (3d) 153 (C.A.); Cempel v. Harrison Hot Springs Hotel Ltd. (1997), 1997 CanLII 2374 (BC CA), 43 B.C.L.R. (3d) 219 (C.A.); Heller v. Martens (2002), 2002 ABCA 122, 4 Alta. L.R. (4th) 51 (C.A.); Clyke v. Blenkhorn (1958), 1958 CanLII 347 (NS CA), 13 D.L.R. (2d) 293 (N.S.C.A.).

[87] Our court’s most recent affirmation of this principle is found in the judgment of my colleague Juriansz J.A. in Snushall v. Fulsang (2005), 78 O.R. (3d) 412. There, at para. 29, he quotes with approval the following paragraph from the reasons of Lambert J.A. writing for the majority of the British Columbia Court of Appeal in Cempel:

I think that such an approach to apportionment [a comparative causation approach] is wrong in law. The Negligence Act requires that the apportionment must be made on the basis of “the degree to which each person was at fault”. It does not say that the apportionment should be on the basis of the degree to which each person’s fault caused the damage. So we are not assessing degrees of causation, we are assessing degrees of fault. In this context, “fault” means blameworthiness.

[88] Thus, Lang J.A. and I agree on the principle. What divides us is whether the trial judge accurately instructed the jury on it. For ease of reference, I repeat his brief charge on apportionment:

Then you get down to Question Number Five and you say, if both the plaintiff and the defendants are at fault, how do you apportion the degree of fault between the parties? That can go from zero to 100 in each case, and you would decide. You would say that this incident would not have occurred but for, and you would apportion it. The total has to come to 100. So you would total it right in there and it would total 100 and you would attribute it.

Once you have done that, that is all for “who is responsible”. You forget about that now. [Emphasis added.]

[89] In explaining to the jury how to apportion fault, the trial judge posed the question: “[H]ow do you apportion the degree of fault between the parties?” One sentence later, he answered it: “You would say that this incident would not have occurred but for, and you apportion it.”

[90] In finding no reversible error in the charge, my colleague says that the “but for” reference would not invite the jurors to apportion on the basis of causation because they are not familiar with tort principles; that the trial judge properly asked them to apportion the degrees of “fault”; and that the jury’s apportionment of seventy-five per cent of the blame to Ms. Rizzi does not indicate it was misled as the evidence shows Ms. Rizzi was “the author of her own misfortune”.

[91] I take a different view for there reasons. First, “but for” is the classic and familiar language of causation, recognized as such not just by lawyers but by lay people too.

[92] Second, although the trial judge used the word “fault”, he did not tell the jurors what the word meant. He did not tell them to assess comparative blameworthiness, or explain what that term means. Instead, on the trial judge’s instructions, the jury’s sole focus would have been on apportioning the degrees of causation. The trial judge buttressed that focus with the concluding sentence of his charge on apportionment: “Once you have done that, that is all for who is ‘responsible’.” Directing the jurors to allocate responsibility invited them to consider who “caused” the accident.

[93] And finally, instructing the jury to answer whether the incident would have occurred but for each party’s fault improperly invites the jury to allocate the major share of fault to the party who had the “last chance” to avoid the accident – in this case to Ms. Rizzi because her actions occurred later in time. However, we have abolished the “last clear chance” doctrine: see Treaty Group Inc. v. Drake International Inc. (2007), 2007 ONCA 450, 86 O.R. (3d) 366 at para. 28 (C.A.). We should not resurrect it under the rubric of apportioning fault. Fruman J.A. made this very point in Heller at para. 25:

The doctrine of last clear chance can appear in many guises, often couched in the language of causation, or confused with remoteness. But it always fails to recognize that “each component of liability is only a facet of the whole, and judgment must be on the entirety, not piecemeal on refractions from each facet”: Abbott v. Kasza (1976), 1976 ALTASCAD 80, 71 D.L.R. (3d) 581 at 589 (Alta. S.C. App. Div.). In this case, for example, Martens argues that Heller’s injuries were entirely caused by his failure to wear a seat belt, and therefore his damages should be reduced by 100%. This approach ignores Martens’ failure to stop at a stop sign and instead penalizes Heller, who, by wearing a seat belt, might have had the last chance to avoid injury. Courts should not resurrect the last clear chance doctrine, abolished by legislative choice, by masquerading it as an apportionment theory.

[94] Here, because of the trial judge’s instruction, I think there was a real risk the jury approached the apportionment of fault by asking who had the last chance to avoid the accident. How else can the jury’s allocating seventy-five per cent of the fault to Ms. Rizzi be explained when the landlord created the hazard in the first place, and was best positioned to warn its tenants of the danger or eliminate the danger altogether? Even suggesting, as my colleague does, that Ms. Rizzi “was the author of her own misfortune”, respectfully, is simply another way of saying that Ms. Rizzi caused her own injuries because she had the last chance to avoid them by waiting until the landlord removed the metal sheets before returning the paint supplies to her locker: see Cempel at paras. 18, 20.

[95] For these reasons, in my view, the trial judge’s charge on apportionment constitutes a legal error calling for this court’s intervention.

D. REMEDY

(a) Apportionment

[96] Largely for the reasons given by Lang J.A., this court should reapportion fault rather than ordering a new trial. The error is an error of law; no real issue of credibility arises; and the accident occurred over twelve years ago.

[97] As I said at the outset, I would reapportion fault by reversing the percentages awarded by the jury. In my view, fault should be apportioned seventy-five per cent to the landlord and twenty-five per cent to Ms. Rizzi. The landlord should bear the greater share of fault because, as I have said, it created the danger and then failed to take steps either to eliminate or at least warn its tenants of it. Indeed, though Ms. Rizzi was negligent, it was understandable that she would want to use her locker when she did. Accordingly, the landlord ought to have appreciated the immediacy of the danger it created.

(b) Amount

[98] The jury assessed Ms. Rizzi’s damages (including prejudgment interest) at $945,979.65. After the jury’s apportionment, Ms. Rizzi would have recovered $236,494.91. Lang J.A. would increase the jury’s award for general non-pecuniary damages from $41,000 to $80,000. On her assessment and leaving the jury’s apportionment intact, Ms. Rizzi would receive an additional $9,750 (plus prejudgment interest on that amount). Her total recovery would therefore be $246,244.91 (plus prejudgment interest on the additional amount).

[99] On my apportionment Ms. Rizzi would recover seventy-five per cent of the damages ordered by Lang J.A., which would amount to $738,734.73, plus an additional adjustment for prejudgment interest.

RELEASED: March 11, 2008

“JL” “John Laskin J.A.”

[^1]: I use the words “led to” because the trial judge charged the jury on the “material contribution” causation test rather than the “but for” test. After the subsequent release of Resurfice Corp v. Hanke, 2007 SCC 7, [2007 1 S.C.R. 333 (confirming the “but for” test and concluding that the “material contribution” test applies only in exceptional circumstances), the respondents moved to extend the time to cross-appeal in order to challenge the causation test used by the trial judge. In the end, the extension was refused. Accordingly, the proper test for causation is not an issue in this appeal. [^2]: See also the other two cases in the trilogy: Thornton (Next friend of) v. Prince George School District No. 57, 1978 CanLII 12 (SCC), [1978] 2 S.C.R. 267 and Arnold v. Teno (Next friend of), 1978 CanLII 2 (SCC), [1978] 2 S.C.R. 287 at 333. In the latter case, Spence J. explained the policy logic of the cap, including that there is a reason “to fear a situation where none but the very wealthy could own or drive automobiles because none but the very wealthy could afford to pay the enormous insurance premiums which would be required by insurers to meet such exorbitant awards.” [^3]: The following decisions are cited in support of this principle: Hughes v. Lord Advocate, [1963] A.C. 837 (H.L.), and Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty., [1967] 1 A.C. 617 (P.C.) (Wagon Mound No. 2). [^4]: Binder v. Mardo Construction Ltd. (1994), 1994 CanLII 3953 (NS CA), 136 N.S.R. (2d) 20 (C.A.); Alden v. Spooner (200), 2002 BCCA 592, 6 B.C.L.R. (4th) 308 (C.A.); Courdin v. Meyers (2005), 2005 BCCA 91, 37 B.C.L.R. (4th) 222 (C.A.); Dushynski v. Rumsey (2003), 2003 ABCA 164, 327 A.R. 373 (C.A.). [^5]: Westervelt v. Frappier Estate, [1998] O.J. No. 4830 (Gen. Div.); Hana-Harik v. Waters, [2001] O.J. No. 2303 (S.C.J.); Jones v. Mazolla, [2004] O.J. No. 366 (S.C.J.). [^6]: See also Gorman v. Faladreau, 2005 CanLII 18837 (ON CA), [2005] O.J. No. 2213 (C.A.) [^7]: Some experts had diagnosed the plaintiff in that case with fibromyalgia; however, this diagnosis was largely not substantiated by the other trial evidence.