Legate: Personal Injury Lawyers

The first long weekend of the summer gave more than just warm weather, fireworks and a day out of the office. The newspaper that weekend reported on some interesting developments in tort law, and some high profile Defamation litigation involving the Globe and Mail. A good friend and Crown attorney was visiting with my family up at the cottage for the weekend. She wanted to know just how significant was the decision in the now famous Jane Doe v. the Toronto Police Department case. She was impressed with the award of damages granted to the victim but wanted my perspective. To do that, I asked her this:

Laura, what would you rather lose: your reputation in the Globe and Mail; the ability to walk, talk and toilet independently; or one of those two beautiful children waiting for us back at the cottage? Would you rather choose to be raped at knife point in your own bed by an intruder? If you choose your reputation, the Courts would award you $400,000. If you choose your physical abilities, $255,000; rape at knife point will get you $175,000.

If you choose the light of your life, focus of all your energies, the one who makes life the grand experience it can be, your child, maybe $50,000. That is about what a good pain in the neck will get you.

Laura stared at me in disbelief.

Many reading this article have faced that disbelief and pain in the faces of parents who have lost their children due to negligence. Many have no doubt thought as I did that they should not come to see me about this loss at all; that the number I will tell them will only add to their pain, not lessen it. Many have realized as I that I cannot tell them that our society apparently sees the loss of one’s reputation as being ten times more valuable than the loss of one’s child.

The treatment of general damages for the loss of a child in Canada is not supportable. I understand the theory. We all understand that no money is enough, that grief is not compensable. But the loss of care, guidance and companionship is compensable. The loss of a child is a moment-to-moment loss of companionship that is life long. It is more than the damage equivalent of a pain in the neck. Our clients suffering from chronic pain know that.

I cannot help but think, as I write this, about a telephone call I made just moments before writing these words. The call was made from an airplane over Lake Ontario to a car outside Bracebridge. I was on my way to the ATLA convention in Washington, and my kids were enroute with their dad back to the cottage after dropping my stepson off at camp. I just wanted to hear their voices. I did. I promised to call when I landed in Washington, to reassure, to touch base. A moment in time- not much, but invaluable. To lose the sound of their voices, the jump and joy in their chatter, would be an unendurable pain. I am certain it is such for those parents who have lost a child.

The damages parents are awarded should reflect that pain and offer some degree of rational solace and acknowledgement of their loss. As matters now stand, the awards are so low they represent a slap in the face and are the shame of what is in many other respects an exemplary civil justice system. It is time for the courts in this province to revisit damage awards for the loss of a child and to make sense of this insupportable nonsense.

As an organization, OTLA has already influenced the course of justice in this Province, in and out of the courtroom. Our members are over-represented in decisions affecting chronic pain, the erosion of the various thresholds, jury practice and demonstrative evidence. The time has come to turn our attention to damage awards for the loss of children, both within and outside of the Courtroom.