Graham et al. v. Rourke

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Goodman, Arbour and Doherty, JJ.A.
• Citation: (1990), 40 O.A.C. 301 (CA)
• Date: 10 October 1990

Graham v. Rourke (1990), 40 O.A.C. 301 (CA)

MLB headnote and full text

Jody Lynn Graham and Gail Graham, Arthur Lawson and Helen Lawson (plaintiffs/respondents) v. Marilyn Rourke (defendant/appellant)

(Nos. 14/88; 364/85)

Indexed As: Graham et al. v. Rourke

Ontario Court of Appeal

Goodman, Arbour and Doherty, JJ.A.

October 10, 1990.

Summary:

The plaintiff was injured when her vehicle was struck from behind by a vehicle driven by the defendant. The plaintiff sued the defendant and at trial was awarded damages. The defendant appealed, arguing that (1) the trial judge erred in discharging the jury during the course of the trial, (2) the trial judge erred in awarding prejudgment interest on the general nonpecuniary damage award at the rate of 12% per annum, and (3) the trial judge erred in failing to give effect to negative contingencies so as to reduce the plaintiff's award.

The Ontario Court of Appeal allowed the appeal in part by reducing the damage award for certain contingencies.

Damages - Topic 1556

General damages - Personal injury - Calculation and method of assessment - Contingencies - Deduction for - The Ontario Court of Appeal discussed generally the principles applicable in assessing damages and arriving at a deduction for contingencies - See paragraphs 40 to 69.

Damages - Topic 1556

General damages - Personal injury - Calculation and method of assessment - Contingencies - Deduction for - The Ontario Court of Appeal rejected the argument that an assessment of general nonpecuniary damages should be reduced by some percentage to allow for negative contingencies - See paragraphs 67, 68.

Damages - Topic 1556

General damages - Personal injury - Calculation and method of assessment - Contingencies - Deduction for - An injured plaintiff was awarded damages for future pecuniary loss and future care costs, with no deduction for negative contingencies - The defendant appealed arguing that the trial judge erred in failing to consider (1) the possibility of future improvement in the plaintiff's condition, and (2) that the plaintiff might not have been able to work or care for herself through age 65 even if the accident had not occurred - The Ontario Court of Appeal agreed that the trial judge erred and reduced damages for future pecuniary loss by 25% and damages for future care costs by 15% - See paragraphs 40 to 73.

Interest - Topic 5004

Interest as damages - Prejudgment interest - Discretion of judge - The Ontario Court of Appeal discussed generally the discretion of a trial judge to award prejudgment interest under the Courts of Justice Act (1984) - The court stated, inter alia, that a judge may consider conduct in setting the rate of prejudgment interest, but prejudgment interest cannot be used to punish or reward a party to the proceedings - See paragraphs 10 to 22.

Interest - Topic 5011

Interest as damages - Prejudgment interest - Interest on nonpecuniary general damages - An injured plaintiff was awarded $100,000 general nonpecuniary damages, plus prejudgment interest at a rate of 12% per annum - The trial judge considered the conduct of the defendant's insurer in setting the interest rate - The defendant appealed, arguing that the trial judge erred in considering the insurer's conduct - The Ontario Court of Appeal held that there was no error in the trial judge considering such conduct where the 12% interest was not intended as punishment for the insurer's behaviour - See paragraphs 20 to 22.

Interest - Topic 5011

Interest as damages - Prejudgment interest - Interest on nonpecuniary general damages - An injured plaintiff was awarded $100,000 general nonpecuniary damages plus prejudgment interest at a rate of 12% per annum - The defendant appealed, arguing that rather than using the definition of prejudgment interest rate under the Courts of Justice Act, the trial judge should have averaged prejudgment rates which existed between the date on which the written notice of claim was given and the date of judgment, thereby yielding a 10.85% interest rate - The Ontario Court of Appeal refused to change the interest rates set by the trial judge where he made no reversible error - See paragraphs 10 to 19.

Practice - Topic 5170

Jury trials - Conduct of - Discharge of jury during trial - An injured plaintiff requested trial before a jury - Near the end of the plaintiff's evidence on the fourth day of trial, the plaintiff moved to discharge the jury - The trial judge allowed the motion - The defendant appealed - The Ontario Court of Appeal refused to set aside the trial judge's decision to discharge the jury where his decision was not an arbitrary or capricious exercise of his discretion, nor was it based on a wrong or inapplicable principle of law - See paragraphs 5 to 9.

Cases Noticed:

King v. Colonial Homes Ltd. et al., [1956] S.C.R. 528; 4 D.L.R.(2d) 561, refd to. [para. 6].

Majcenic v. Natale, [1968] 1 O.R. 189; 66 D.L.R.(2d) 50 (C.A.), refd to. [para. 6].

Kostopoulos v. Jesshoppe (1985), 6 O.A.C. 326; 50 O.R.(2d) 54; 48 C.P.C. 209 (C.A.), refd to. [para. 7].

Spencer v. Rosati, Brim Concrete and Spencer (1985), 9 O.A.C. 119; 50 O.R.(2d) 661 (C.A.), refd to. [para. 15].

Haverkate v. Toronto Harbour Commission et al. (1986), 55 O.R.(2d) 712 (H.C.), refd to. [para. 17].

Zamonsky v. Soundair Corporation et al. (1987), 19 C.P.C.(2d) 202 (Ont. H.C.), refd to. [para. 17].

Irvington Holdings Ltd. v. Black et al. (1987), 20 O.A.C. 390; 58 O.R.(2d) 449 (C.A.), refd to. [para. 20].

Andrews v. Grand and Toy (Alberta) Limited, [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; [1978] 1 W.W.R. 557; 83 D.L.R.(3d) 452; 3 C.C.L.T. 225, refd to. [paras. 40, 42, 43, 45, 54, 67, 69].

Schrump et al. v. Koot et al. (1977), 18 O.R.(2d) 337 (C.A.), refd to. [paras. 40, 47, 56].

Giannone et al. v. Weinberg (1989), 33 O.A.C. 11; 68 O.R.(2d) 767 (C.A.), refd to. [para. 40].

Lewis v. Todd et al., [1980] 2 S.C.R. 694; 34 N.R. 1; 14 C.C.L.T. 294; 115 D.L.R.(3d) 257 (S.C.C.), refd to. [paras. 44, 45].

Thornton v. Board of School Trustees of School District No. 57, [1978] 2 S.C.R. 267; 19 N.R. 552; [1978] 1 W.W.R. 607; 83 D.L.R.(3d) 480; 3 C.C.L.T. 257, refd to. [para. 45].

Stein Estate v. Ship "Kathy K", [1976] 2 S.C.R. 802; 6 N.R. 359; 62 D.L.R.(3d) 1, refd to. [para. 54].

Mulroy v. Aqua Scene et al. (1982), 36 O.R.(2d) 653 (C.A.), refd to. [para. 54].

Yepremian v. Scarborough General Hospital et al. (1978), 20 O.R.(2d) 510 (H.C.), varied 28 O.R.(2d) 494 (C.A.), refd to. [para. 66].

Statutes Noticed:

Courts of Justice Act, S.O. 1984, c. 11, sect. 137, sect. 138 [paras. 10, 16, 19]; sect. 140 [paras. 16, 20]; sect. 140(b) [paras. 10, 14].

Authors and Works Noticed:

Cooper-Stephenson and Saunders, Personal Injury Damages in Canada (1981), pp. 84 [para. 40]; 91-92 [para. 41].

Counsel:

W.L.N. Somerville, Q.C., and W.R. Middleton, for the appellant;

Earl A. Cherniak, Q.C., and Kirk F. Stevens, for the respondents.

This appeal was heard on September 5-7, 1990, before Goodman, Arbour and Doherty, JJ.A., of the Ontario Court of Appeal. The following decision of the Court was delivered by Doherty, J.A., and released on October 10, 1990: