One of the challenges we face as Canadian personal injury lawyers arises from the differences between Canadian and American approaches to damages. Our clients hear about massive personal injury awards (the $1.3 Million “spilled coffee” cases etc.), then are frustrated or suspicious by the relatively modest damages available in a Canadian case.
This discrepancy reached a new level in Monson et al v. Morsette, a recent car accident case out of North Dakota where a jury awarded more than a BILLION dollars in damages.
On June 27th, 2015, the defendant Jordan Morsetteslammed head-on into Shayna Monson’s car, killing her two passengers, Abby Renschler and Taylor Goven. Monson suffered a severe traumatic brain injury in the crash. The defendant Morsette was impaired, with a blood alcohol content more than three times the legal limit.
In 2016, Morsette pled guilty to two counts of vehicular homicide and one count of criminal negligence causing injury. He is currently serving a 20-year sentence.
Monson sued in civil court, seeking compensation for her injuries, loss of income and cost of future care. The families of the passengers sought compensation for the wrongful deaths of their children. As well, the plaintiffs sued for punitive damages against Morsette for driving impaired.
While the same types of damages can be sought in a Canadian court, the amounts a Canadian accident victim or bereaved family member can expect to recover are starkly different. This is particularly true in the case of punitive damages. The US approach emphasizes punishing the wrongdoer. Our system is based on making the victim whole by compensating what has been lost (to the best that money can do so). While Canadian juries will support punitive damages awards, they are exceptional and awarded on a much smaller scale than in the US.
In Monson, the jury heard evidence from medical experts for Ms. Monson that described the extent of her brain damage and its devastating impact on her future. Reports setting out the details of her future care needs (for example, attendant care, physical accommodations, housing), loss of potential future income and other losses were provided. Evidence relating to the impact on the passengers’ families was also given.
Somehow, in response to this evidence, the jury awarded compensatory damages totaling $170 Million to Monson and $36Million each to the families of the two deceased passengers.
These amounts simply do not make sense in the Canadian legal landscape. Our understanding of compensation means that the plaintiffs must set out the best estimate of actual losses that they have suffered or are likely to suffer in the future. It is based on data-driven future care costs and other reports. The defendant provides a counterproposal based on its own expert reports. The jury considers all the evidence and assigns a value. In a case like Monson, with a younger plaintiff who likely will not work and will need ongoing care for life, it is possible to see a $20 Million award, but that would be considered very high. Ms. Monson received approximately ten times that amount (with the exchange rate).
The family awards are even more disproportionate. Under our Family Law Act, families of injury victims can make claims, including wrongful death lawsuits in cases like Monson. The recoverable damages are modest however, on the grounds that money really can not compensate the loss of a loved one. As a result, wrongful death lawsuits usually result in relatively small damages. In many cases they are fought to give the family a sense of closure, to cover funeral and other costs. $36 Million is literally unimaginable.
The other aspect of damages that impacts both countries concerns the availability of funds to pay the damages awarded by the jury. Unless the defendant has a lot of money or significant assets that can be liquidated, the damages that can actually be recovered will be limited to the amount of insurance coverage held by the defendant and any other sources of insurance (bars/restaurants, employers, rental companies, other drivers, municipalities).
The least insurance a driver can purchase in Ontario is $200,000. If the driver is uninsured, the Motor Vehicle Accident Claims Fund will provide at least that amount. Typically, Ontario drivers have at least $1 Million in liability coverage. In the US, it is not uncommon for a driver to carry as little as $25,000 in liability coverage.
So, despite the fact that a plaintiff like Ms. Monson might demonstrate the need for $20 Million, or be awarded $170 Million, she will usually receive only a small fraction of that amount.
Punitive damages are awarded to punish the wrongdoer and to deter the wrongdoer and others from engaging in unlawful conduct in the future. In Canada, punitive damages are awarded only in exceptional cases where the conduct, “offends the court’s sense of decency”.Two basic requirements underlie Canadian punitive damages:
(i) The defendant’s conduct must be reprehensible; and
(ii) punitive damages, after taking into account any compensatory award, must be rationally required to punish the offending party and to meet the objectives of retribution, deterrence, and denunciation.
Whereas we view punitive damages in relation to the overall compensation of the victim, and reserve them for reprehensible conduct, punishment and deterrence are the underlying foundations of the US model. Our courts have made it clear that punitive damages should be the least amount that meets the societal objectives set out above. Usually $100,000 is considered a large punitive damages award in personal injury trials.
Clearly, this principle of rational proportionality is not part of the US model. In Monson, the jury awarded $295 Million in punitive damages to Ms. Monson and both families. This was done to “show the value of a human life (!)”
The lingering question following a decision like Monson is, apart from the symbolic gesture of denouncing Morsette’s conduct, what practical benefit for the plaintiff arises in a personal injury lawsuit from outrageously high awards like these? It is a different matter when the defendant is a corporation, hospital, municipality or other entity. These defendants will have greater insurance coverage and/or significant assets to cover the damages. On the other hand, awards like these distort the public’s perception of the reasonable range of recovery for personal injury claims against individual defendants. This leads to false expectations and unnecessary confusion and dissatisfaction by accident victims when they should be concentrating on their recovery.
If you have questions about your reasonable expectation for recovery or your lawsuit generally, we are pleased to offer a free consultation. We are experts in litigation and accident benefits management. Put Campisi LLP to work for you – Clients First, Excellence Always!