Measuring Tort Damages

Measuring Tort Damages

In Trotter –Brons (Litigation guardian) v Corrigan 2016 BCSC 1891 the court sets out the rule for measuring tort damages.

Action was brought pursuant to Family Compensation Act for damages arising from deaths of infant plaintiff’s biological parents who were killed in motor vehicle accident . An order was made giving the the COurt held that maternal grandmother and her husband sole custody of plaintiff, and they adopted him.

The parties elected to proceed by special case to determine effect of plaintiff’s adoption on claim for damages resulting from death of biological parents.

The obligations of adoptive parents were gratuitous, in spite of legal obligation imposed on them, and ought not to reduce damages plaintiff would otherwise be entitled to.

The court held that None of infant plaintiff’s claims were extinguished upon his adoption  as the act of adopting the plaintiff did not reduce damages for loss of his biological parents.

Chief Justice McLachlin, on behalf of the Court, discussed the obligation of a parent to a child in Krangle (Guardian ad litem of) v. Brisco 2002 SCC 9 (S.C.C.). In that case, a child was born with Down syndrome and his parents sued his mother’s physician for failing to advise her of the availability of testing which would have revealed the Down syndrome. Had the testing been available to her, it was found that she would have had an abortion. The Chief Justice commented that:

22 . . . Jane Stapleton, “The Normal Expectancies Measure in Tort Damages ” (1997), 113 L.Q.R. 257, thus suggests, at pp. 257-58, that the tort measure of compensatory damages may be described as the “‘normal expectancies’ measure”, a term which “more clearly describes the aim of awards of compensatory damages in tort: namely, to re-position the plaintiff to the destination he would normally have reached … had it not been for the tort”. The measure is objective, based on the evidence. This method produces a result fair to both the claimant and the defendant. The claimant receives damages for future losses, as best they can be ascertained. The defendant is required to compensate for those losses. To award less than what may reasonably be expected to be required is to give the plaintiff too little and unfairly advantage the defendant. To award more is to give the plaintiff a windfall and require the defendant to pay more than is fair.

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