McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee
Jim Russell International Racing Drivers v. Hite,  R.J.Q. 1610 (C.A.). (CB1p45)
Hite’s face was severely injured and disfigured when he drove through a chain at a race track operated by Jim Russell.
How should judges assess moral injuries?
In concreto in terms of their effects on the person’s life.
The court found that it was damages should be awarded in term’s of the individual’s loss or suffering, not in terms of abstract rules. This is what’s called the “personal” approach. LeBel JA rejected the SCC’s ceiling on non-pecuniary damages as well as the “functional” approach as being particular to common law.
Ouellette c. Tardif,  R.J.Q. 1386. (C.A.). (CB1p63)
Ouellette and his son ran their speedboat over Tardif while he was swimming in a lake (wearing a dark blue wetsuit). Fourteen-year-old Olivier Ouellette was apparently not looking ahead when he ran over Tardif. Tardif was seriously injured and could not resume his work as a “white father” missionary in Africa.
1. How should the court calculate lost income (pecuniary damages)?
2. How should the court calculate loss of capacity (for non-pecuniary damages)?
1. in abstracto
2. functional approach
1. Although Tardif had taken a vow of poverty, and did not earn an income, the calculation of lost income was based on the salary he could have earned doing the same job (university professor) in Canada.
2. The court’s award of non-pecuniary damages was based on a comparison with the 1978 Trilogy; it awarded only $75,000 due to the fact that Tardif was in his fifties and thus had a relatively short life expectancy.
Why would a guy who had taken a vow of poverty want all this money?
Ter Neuzen v. Korn,  3 S.C.R. 674. (CB1p49)
Dr. Korn artificially inseminated the Ter Neuzen with HIV-infected semen, from which she contracted HIV. The semen donor had not been tested for HIV, but this was standard medical practice at the time (1985)—it was not widely known that HIV could be spread through artificial insemination. Korn also rarely did any follow-up testing of his donors. (The evidence of standard practice on this issue was sketchy.)
The trial jury found that Korn had been negligent, and awarded Ter Neuzen $460,000 in non-pecuniary damages (in excess of the limit set by the Supreme Court of Canada in 1978).
1. Can non-pecuniary damages be awarded in excess of the $100,000 (in 1978 dollars) limit set by the Supreme Court?
2. Could a jury could find a doctor to be negligent, even if he was following standard medical practices?
2. Yes, possibly.
a new trial was ordered.
1. The Supreme Court’s 1978 limit for non-pecuniary damages was based on the functional approach: the money awarded should help provide solace to the plaintiff and alleviate the suffering. It is impossible to put a money value on pain and suffering, so the courts should not try. Also, extravagant damages place an excessive burden on society.
2. Although it was not open to the jury to decide whether Korn had followed standard medical practices (that depended on expert witnesses), the jury could find a standard practice itself to be negligent if it had obvious, common-sense flaws. In this case, a jury could conceivably fault Korn for his failure to do follow-up testing on his donors.