Supreme Court of Canada
Lindal v. Lindal, [1981] 2 S.C.R. 629
Date: 1981-12-17
Brian William Lindal (Plaintiff) Appellant;
and
Kenneth Daniel Lindal (Defendant) Respondent.
1981: June 24; 1981: December 17.
Present: Martland, Ritchie, Dickson, Estey and McIntyre JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Damages—Personal injuries—Non-pecuniary damages—Functional approach in assessment—Affirmation of $100,000 upper limit on general damages for non-pecuniary loss—Effect of inflation on upper limit—Court Order Interest Act, R.S.B.C. 1979, c.76.
Appellant claimed against respondent for personal injuries—extensive brain damage resulting in physical and mental disability and emotional disorder—sustained as a result of the respondent’s negligent driving of a motor vehicle. The trial court awarded $135,000 for non‑pecuniary damages, irrespective of the upper limit of $100,000 set by this Court in the “trilogy” cases, because the appellant in that court’s opinion suffered more severe injury than plaintiffs in the “trilogy” cases. On appeal the British Columbia Court of Appeal, discountenancing an alternative argument that inflation favoured the award, allowed the appeal and reduced the amount to $100,000. The question was whether the Appeal Court erred in making the reduction.
Held: The appeal should be dismissed.
The Court of Appeal correctly determined the appropriate level of damages for non‑pecuniary loss in this case to be $100,000. The award did not depend upon the gravity of the injury alone. Its purpose was not to compensate for loss of amenities, but rather to provide a substitute for those amenities in order to ameliorate the victim’s condition and make his life more bearable. Inflation, however, could be a factor in considering whether to exceed the upper limit.
Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Arnold v. Teno, [1978] 2 S.C.R. 287; Thornton v. Board of School Trustees of School Dis-
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trict No. 57 (Prince George), [1978] 2 S.C.R. 267; Lewis v. Todd, [1980] 2 S.C.R. 694, applied.
APPEAL from a judgment of the Court of Appeal for British Columbia[1], reducing the award of Fulton J. on non-pecuniary damages in an action for damages for personal injuries. Appeal dismissed.
B.A. Crane, Q.C., and R. Stanton for the appellant.
R.B. Harvey for the respondent.
The judgment of the Court was delivered by
DICKSON J.—This is another tragic personal injury case. Liability is no longer in issue. The only question on appeal is whether the Court of Appeal of British Columbia erred in reducing from $135,000 to $100,000 the award for pain and suffering and loss of amenities of life.
This Court, in recent years, has sought to fashion a body of rational and cohesive principles to guide trial courts in the assessment of damages in personal injury cases. The broad outline of these principles was sketched in three judgments delivered on January 19, 1978, sometimes referred to as the ‘trilogy’: Andrews v. Grand & Toy Alberta Ltd.[2]; Arnold v. Teno[3]; Thornton v. Board of School Trustees of School District No. 57 (Prince George)[4]. The outline was further clarified and refined in Lewis v. Todd[5]. The present case affords an opportunity to continue the exposition. The issue here is narrow: under what circumstances should a trial judge exceed the rough upper limit of $100,000 for non-pecuniary loss established by the Court in the trilogy?
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I
The appellant, Brian Lindal claimed against his brother, the respondent Kenneth Lindal, for damages sustained by the appellant as a result of the negligence of the respondent in the operation of a motor vehicle on May 18, 1975, at River Road in the Municipality of Delta, Province of British Columbia. The respondent lost control of the motor vehicle, in which the appellant was a passenger, and collided with a telephone pole resulting in severe physical and other injuries to the appellant. He was comatose for a period of almost three months. He suffered extensive damage to brain and brain stem resulting in severe dysarthria (speech impairment) due to loss of control of the muscles of the lips, tongue and palate. He suffered also from ataxic (irregularity of function) and spastic (sudden convulsive movement) double hemiplegia (loss of control of the muscles of the arms and hands and legs). In addition to the physical disability flowing from the loss of brain function there is appreciable personal and emotional disorder. The appellant lacks the capacity to reconcile himself mentally to his condition. He is emotionally labile, irritable, erratic and given to fits of depression. As at the date of trial, the appellant did not have any pain as a result of his injuries.
In assessing damages the trial judge, Fulton J. in reasons reported in [1978] 4 W.W.R. 592, carefully reviewed the decisions I have mentioned. He considered the appellant was not as severely paralyzed as either Andrews or Thornton, but in the end result was less mobile than they, for they apparently were able to move about freely in wheelchairs and one of them, Andrews, was able to drive a specially equipped van whereas here the appellant was limited to extremely slow, unsteady and difficult walking. More importantly, the appellant had suffered loss of brain function with resultant speech impairment and other consequences, whereas both Andrews and Thornton were left with mental functions unimpaired. In the Teno case, the infant plaintiff had also suffered severe brain injury but in Teno there did not
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appear to have been the personality disorders and constant frustration shown by Brian Lindal as a result of inability to make the mental adjustment.
Mr. Justice Fulton noted that this Court, in the trilogy, had established a normal upper limit of $100,000 for damages for non-pecuniary loss. However, in Fulton J.’s opinion, the door had been left open for a higher award in an ‘exceptional case’. The trial judge referred to the following passage at p. 265 from the judgment in Andrews in support of this proposition:
I would adopt as the appropriate award in the case of a young adult quadriplegic like Andrews the amount of $100,000. Save in exceptional circumstances, this should be regarded as an upper limit of non-pecuniary loss in cases of this nature.
The judge felt that ‘exceptional circumstances’ were present in the case of Brian Lindal. Brian Lindal, because of his damaged brain, has no chance of adjusting and leading a useful life; this possibility was open to the plaintiffs in Andrews and Thornton where there was no loss of brain function.
The judge concluded that in Andrews this Court had fixed the normal upper limit of an award under the head of non-pecuniary damages in very severe personal injury cases, but that this was “not an absolute ceiling fixed for all time”. The following passage from Andrews at p. 263 was quoted:
It is difficult to conceive of a person of his age losing more than Andrews has lost. Of course, the figures must be viewed flexibly in future, cases in recognition of the inevitable differences in injuries, the situation of the victim, and changing economic conditions.
The judge found what he referred to as “compelling reasons” for fixing a higher sum. He considered that the consequences of Brian Lindal’s injuries—lack of mobility, lack of ability to communicate, personality disorders—were substantial-
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ly more serious than in the Andrews and Thornton cases. Two additional facts were relied on—(i) evidence of extreme depression and suicidal tendencies and (ii) the taking of a drug called dantrium, which had undesirable side effects, to relieve the effects of spasticity in the muscles. Damages for non-pecuniary loss were fixed at $135,000.
II
The sole issue on the appeal to the Court of Appeal of British Columbia was whether the trial judge had erred in awarding a sum in excess of $100,000 for non-pecuniary loss. The Court of Appeal, speaking through Taggart J.A., could not accept the conclusion that Brian Lindal was less mobile than Thornton and Andrews; Thornton and Andrews were, in the opinion of the Court, immeasurably worse off than Lindal. The impairment of Lindal’s mental faculties was a most serious disability, one not suffered by Andrews and Thornton, but, when one had regard to the injuries sustained by the child in Teno, not so serious as to warrant an award in excess of $100,000. The following passage sums up the views of the Court:
It will never be possible to make a precise comparison between persons who suffer non-pecuniary losses as a result of personal injuries. Their personalities will differ as will the circumstances obtaining both before and after the accident giving rise to their injuries. The effect of their injuries on them even though those injuries be similar will also vary because of their differing abilities to adjust to the altered circumstances in which they find themselves. I think it is because there is no possibility of making a precise comparison that Dickson, J. in Andrews and Thornton and Spence, J. in Teno used general language in fixing the rough upper limit of $100,000 as the amount to be awarded for non-pecuniary losses. I think that also led them to say that it should be only in exceptional cases that that limit should be exceeded. In my view this is not an exceptional case but rather one in which the limit fixed by Dickson, J. in Thornton and Andrews and by Spence, J. in Teno should prevail.
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The Court allowed the appeal and reduced the amount awarded for non-pecuniary damages from $135,000 to $100,000.
Counsel for Brian Lindal advanced without success an alternative argument, in an attempt to sustain the higher award. He submitted that changes in economic conditions, that is to say, inflation, between the date of judgment at trial in April 1978 and date of judgment on appeal in October 1980 militated in favour of increasing the award from $100,000 to $135,000. The Court declined to hear this submission on the ground that it would have been necessary for counsel to refer to statistical and other materials not introduced in evidence at trial and there had been no application before the Court to introduce new evidence.
The Court added:
We sit as a court of review and not for the purpose of retrying a case. If we were to take account of the factors suggested by counsel for the respondent it seems to me we would be following the latter course. That is not to say that where evidence of an economic nature is adduced at trial which supports a conclusion that the case is one where an award in excess of the $100,000 level fixed in Andrews, Thornton and Teno should be made we cannot have regard for that evidence. I say simply that the material to which counsel for the respondent wished to refer was not before the trial judge and forms no part of the record which is before us. For those reasons we declined to hear counsel for the respondent on this aspect of his argument.
III
In the trilogy, this Court reaffirmed the basic principle that the purpose of awarding damages for personal injury is compensation not punishment. The goal is to put the plaintiff in the position he would have been in had the injury not been suffered. The principle of compensation ensures a measure of fairness to both parties:
The focus should be on the injuries of the innocent party. Fairness to the other party is achieved by assuring that the claims raised against him are legitimate and justifiable. [Andrews, supra, at pp. 243-44]
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A number of secondary principles flow from the basic precept of compensation. The first is that anything having a money value which the plaintiff has lost should be made good by the defendant. If the plaintiff is unable to work, then the defendant should compensate him for his lost earnings. If the plaintiff has to pay for expensive medical or nursing attention, then this cost should be borne by the defendant. These costs are ‘losses’ to the plaintiff, in the sense that they are expenses which he would not have had to incur but for the accident. The amount of the award under these heads of damages should not be influenced by the depth of the defendant’s pocket or by sympathy for the position of either party. Nor should arguments over the social costs of the award be controlling at this point. The first and controlling principle is that the victim must be compensated for his loss.
Different considerations are paramount in the matter of damages for non-pecuniary loss. The principle restitutio in integrum can find only limited application in the matter of non-pecuniary losses. A lost limb or a lost mind are not assets that can be valued in monetary terms. Money cannot repair brain damage or obliterate anguish and suffering. As the Court put it in Andrews, at p. 261:
There is no medium of exchange for happiness. There is no market for expectation of life. The monetary evaluation of non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one.
Pain and suffering and loss of amenities are intangibles. They are not possessions that have an objective, ascertainable value. Professor Kahn-Freund in his brilliant essay “Expectation of Happiness” (1941), 5 Modern L. Rev. 81 [at p. 86], cites the example of the Stoic philosopher Poseidonios, who, when tormented by pain, is reported to have exclaimed: “Pain, thou shalt not defeat me. I shall never admit that thou art an evil.” How, Professor Kahn-Freund asks, could we award damages for pain and suffering to this philosopher who welcomed his misery as a test of his own power to resist it? Is the Stoic entitled to
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less compensation than the weak-willed person who recoils at the slightest suggestion of pain or unhappiness? These examples only reinforce the conclusion that it is fruitless to attempt to put a dollar value on the loss of a faculty in the way that we put a dollar value on the loss of a piece of property.
These problems were identified and discussed by the Court in the trilogy. In Andrews, three theoretical approaches to the problem of non-pecuniary loss were canvassed. The first two approaches, the ‘conceptual’, which treats each faculty as a proprietary asset with an objective value, and the ‘personal’, which would measure loss in terms of human happiness of the particular individual, both seek, in varying ways, to place a dollar value on human faculties and human happiness. The Court adopted the third approach, the ‘functional’, which rather than attempting to set a value on lost happiness, attempts to assess the compensation required to provide the injured person with reasonable solace for his misfortune. Money is awarded, not because lost faculties have a dollar value, but because money can be used to substitute other enjoyments and pleasures for those that have been lost. The matter is discussed in Andrews in these terms at p. 262:
…it provides a rationale as to why money is considered compensation for non-pecuniary losses such as loss of amenities, pain and suffering, and loss of expectation of life. Money is awarded because it will serve a useful function in making up for what has been lost in the only way possible, accepting that what has been lost is incapable of being replaced in any direct way. As Windeyer J. said in Skelton v. Collins [(1966), 39 A.L.J.R. 480] at p. 495:
…he is, I do not doubt, entitled to compensation for what he suffers. Money may be compensation for him if having it can give him pleasure or satisfaction… But the money is not then a recompense for a loss of something having a money value. It is given as some consolation or solace for the distress that is the consequence of a loss on which no monetary value can be put.
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If damages for non-pecuniary loss are viewed from a functional perspective, it is reasonable that large amounts should not be awarded once a person is properly provided for in terms of future care for his injuries and disabilities. The money for future care is to provide physical arrangements for assistance, equipment and facilities directly related to the injuries. Additional money to make life more endurable should then be seen as providing more general physical arrangements above and beyond those relating directly to the injuries. The result is a coordinated and interlocking basis for compensation, and a more rational justification for non-pecuniary loss compensation.
Thus the amount of an award for non-pecuniary damage should not depend alone upon the seriousness of the injury but upon its ability to ameliorate the condition of the victim considering his or her particular situation. It therefore will not follow that in considering what part of the maximum should be awarded the gravity of the injury alone will be determinative. An appreciation of the individual’s loss is the key and the “need for solace will not necessarily correlate with the seriousness of the injury” (Cooper-Stephenson and Saunders, Personal Injury Damages in Canada (1981), at p. 373). In dealing with an award of this nature it will be impossible to develop a “tariff”. An award will vary in each case “to meet the specific circumstances of the individual case” (Thornton at p. 284 of S.C.R.).
Mr. Justice Spence, in Teno v. Arnold at pp. 333-34, approached the matter of non-pecuniary loss on the same footing:
If, as did my brother Dickson, one realizes that it is impossible to compensate for the losses of the various elements involved in non-pecuniary damages and that it is reasonable, none the less, to make an award then gauge that award by attempting to set up a fund from which the plaintiff may draw, not to compensate for those losses, but, to provide some substitute for those amenities. As Harman L.J. put it so well in Warren v. King [[1963] 3 All E.R. 521], at p. 528, “…what can be done to alleviate the disaster to the victim, what will it cost to enable her to live as tolerably as may be in the circumstances”.
The following comments on the functional approach are found in a recent article by Professor
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Beverley M. McLachlin, “What Price Disability? A Perspective on the Law of Damages for Personal Injury” (1981), 59 Can. Bar Rev. 1 at pp. 11 and 12:
The essential point is that the plaintiff must demonstrate a reasonable or fair function which the money claimed will serve. As these examples illustrate, what is a reasonable or fair function may involve reference to the restitutionary concept of what the plaintiff would have enjoyed or have been able to provide for his dependants had he not been injured. This reflects the fact that the functional approach to damages is not in conflict with the ideal of restitutio in integrum, but rather provides a basis for calculating the closest practical equivalent to the goal of restoring the plaintiff to his original position. Viewed thus, the functional approach shows promise of providing the comprehensive and just rationale for the calculation of damages for personal injuries which has heretofore been wanting.
and at p. 48:
The attractions of a functional approach to the assessment of non-pecuniary damages are considerable. It provides a much needed rationale for such damages. It solves the problem inherent in the traditional compensation model of what the compensation is for. And it is in conformity with the conclusion of Lord Pearson’s Commission:
We think the approach should be to confine* non-pecuniary damages only where they can serve some useful purpose, for example, by providing the plaintiff with an alternative source of satisfaction to replace one that he has lost.
[*should read “award”]
The functional approach in the assessment of damages for non-pecuniary loss was adopted by the Pearson Commission in England (Royal Commission on Civil Liability and Compensation for Personal Injury, (1978) Cmnd. 7054-I). The Commissioners stated that the main aim of any system for the award of pecuniary damages should be to make good the loss. Non-pecuniary damages should be awarded only when they can serve some useful purpose, for example, by providing the plaintiff with an alternative source of satisfaction to replace one that he has lost (Vol. 1, paragraph 397). This led the Commissioners to recommend that a permanently unconscious plaintiff should
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not receive any damages for non-pecuniary loss since the money award could serve no useful purpose (paragraph 398, Vol. 1).
I have already indicated that the social costs of the award cannot be controlling when assessing damages for loss of income and the cost of future care. The plaintiff must be provided with a fund of money which will provide him with adequate, reasonable care for the rest of his life. The social impact of the award must be considered, however, in calculating the damages for non-pecuniary loss. There are a number of reasons for this. First, the claim of a severely injured plaintiff for damages for non-pecuniary loss is virtually limitless. This is particularly so if we adopt the functional approach and award damages according to the use which can be made of the money. There are an infinite number of uses which could be suggested in order to improve the lot of the crippled plaintiff. Moreover, it is difficult to determine the reasonableness of any of these claims. There are no accurate measures available to guide decision in this area.
A second factor that must be considered is that we have already fully compensated the plaintiff for his loss of future earnings. Had he not been injured, a certain portion of these earnings would have been available for amenities. Logically, therefore, even before we award damages under the head of non-pecuniary loss, the plaintiff has certain funds at his disposal which can be used to provide a substitute for lost amenities. This consideration indicates that a moderate award for non-pecuniary damages is justified.
A third factor is that damages for non-pecuniary loss are not really ‘compensatory’. The purpose of making the award is to substitute other amenities for those that have been lost, not to compensate for the loss of something with a money value. Since the primary function of the law of damages is compensation, it is reasonable that awards for
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non-pecuniary loss, which do not fulfil this function, should be moderate.
The social impact and possible effect, in practical terms, of very large awards for non‑pecuniary loss was considered by Mr. Justice Spence in the Teno case at p. 333:
The very real and serious social burden of these exorbitant awards has been illustrated graphically in the United States in cases concerning medical malpractice. We have a right 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.
This Court, while recognizing that limits are by their very nature arbitrary and conventional, endorsed the concept of an upper limit for awards of non-pecuniary loss in personal injury cases. The Court felt this to be desirable for the reasons outlined above and in the Andrews judgment at p. 261, from which I quote the following:
However, if the principle of the paramountcy of care is accepted, then it follows that there is more room for the consideration of other policy factors in the assessment of damages for non-pecuniary losses. In particular, this is the area where the social burden of large awards deserves considerable weight. The sheer fact is that there is no objective yardstick for translating non-pecuniary losses, such as pain and suffering and loss of amenities, into monetary terms. This area is open to widely extravagant claims. It is in this area that awards in the United States have soared to dramatically high levels in recent years. Statistically, it is the area where the danger of excessive burden of expense is greatest.
It is also the area where there is the clearest justification for moderation.
I would here reaffirm, for all the reasons outlined above, a rough upper limit of $100,000 for non-pecuniary loss in cases of severe personal injury, as providing a measure of uniformity and predictability in this difficult area. None of us, however, is unaware of, or unaffected by, the
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inflationary trend and the erosion in the value of money since the trilogy of cases was decided by this Court. The value of money has been steadily declining. It seems only reasonable therefore to reaffirm the statement in Andrews, at p. 263, that the figures must be viewed flexibly in recognition of, inter alia, “changing economic conditions”. Such amount of $100,000 should be subject to increase upon proof of, or agreement as to, the effect of inflation on the value of money since the decisions of this Court in Andrews, Teno and Thornton. A Court may take judicial notice of the fact than an inflationary trend exists, but I should not think that the precise monthly or yearly inflation rate is normally a fact of which such notice may be taken.
IV
Mr. Justice Fulton made no reference to functional considerations in making his award of $135,000 for Brian Lindal’s non-pecuniary loss. He referred to those passages in Andrews which discuss the need for ‘flexibility’ in the assessment of non-pecuniary damages. He concentrated on demonstrating that the plaintiff Lindal was in a worse position than the plaintiffs in Andrews and Thornton, in concluding that $35,000 was a ‘reasonable and proper measure’ of the difference between Lindal and Andrews and Thornton.
With great respect, in the case at bar, Mr. Justice Fulton appears to have misapprehended fundamentally the significance of the award of a conventional sum of $100,000 for non‑pecuniary loss made by this Court to the three plaintiffs in the trilogy. He seems to have assumed that the figure of $100,000 was a measure of the ‘lost assets’ of the plaintiffs in those cases. The issue was seen as one of quantifying and comparing the losses sustained. Once this premise is accepted, the question then becomes whether the plaintiff Lindal has lost more ‘assets’ than did the plaintiffs in the earlier cases. If the answer to this question is in the affirmative then it naturally follows that Brian Lindal deserves an award of over $100,000 under the head of non-pecuniary loss. The excess will
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represent the difference in value between what Lindal has lost and what the plaintiffs Andrews and Thornton have lost.
The difficulty with this approach is with the initial premise. The award of $100,000 for non‑pecuniary loss in the trilogy was not in any sense a valuation of the assets which had been lost by Andrews, Thornton and Teno. As has been emphasized, these assets do not have a money value, and thus an objective valuation is impossible. The award of $100,000 was made, as earlier indicated, in order to provide more general physical arrangements above and beyond those directly relating to the injuries in order to make life more endurable. This is reflected in the fact that an identical sum was awarded to each of the three plaintiffs in those cases, even though their injuries were quite different. James Andrews, for example, suffered a lesion of the spinal cord which paralyzed most of his upper limbs, spine and lower limbs. He no longer had normal bladder, bowel and sex functions. Andrews was severely, if not totally, disabled. By way of contrast, Diane Teno had suffered a severe brain injury. Her speech was affected and she had a severe spastic paralysis on her left hand and arm. She was able to walk by herself but she did so clumsily.
No one would suggest that the injuries suffered by these two individuals were precisely identical. The Court recognized that their situations were in many ways quite different. Notwithstanding these differences, the Court awarded the same sum for non-pecuniary loss. Equally, the fact that Brian Lindal’s injuries are different from and arguably more severe than those of James Andrews does not justify an award of more than $100,000 in this case.
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 guideline of $100,000. But, if the purpose of the guideline is
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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. The defendant, and ultimately, society at large, would be in the position of satisfying extravagant claims by severely injured plaintiffs.
It is apparent, therefore, that there was no justification for exceeding the limit of $100,000 in the case of Brian Lindal. While his injuries were different from those of the plaintiffs in the trilogy, this alone does not justify exceeding the upper limit.
V
The plaintiff argued in the Court of Appeal and in this Court that, even assuming that the trial judge erroneously exceeded the limit of $100,000, changes in economic circumstances since judgment was given in April, 1978 justified an award of $135,000.
Account may be taken of inflation in awarding damages and it is not suggested that the figure of $100,000 should not vary in response to economic conditions, in particular, the debasement of purchasing power as a result of inflation.
In the present case, inflation is not a significant factor. The trial judgment was delivered in April, 1978 some four months after the judgments in the trilogy and it is conceded there was no measurable increase in inflation during this brief period. I do not think in the circumstances that the award of the trial judge can be supported on the basis of inflation.
In the result, in my view, the disposition of the Court of Appeal was correct. The appropriate level
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of damages for non-pecuniary loss in this case is $100,000.
VI
I would dismiss the appeal with costs. In response to the request, and agreement, of counsel I would also order that the damages awarded by the trial judge for loss of future income be increased by adding interest set out in the British Columbia Court Order Interest Act, R.S.B.C. 1979, c. 76, less five percent, calculated from the date of the trial judgment until payment.
Appeal dismissed with costs.
Solicitor for the appellant: Russell V Stanton, Vancouver.
Solicitors for the respondent: Russell & DuMoulin, Vancouver.