Law Times

PAGE 10 FOCUS OcTOber 19, 2009 • Law Times Defence lawyers view $18.4-million personal injury judgment with caution al injury award ever in Canada, defence lawyers are viewing the case with caution. "Th is was a thinly defended case," says Cheryl Woodin of Borden Ladner Gervais LLP. "Th e award was generated on the basis of expert evidence Massive damages award case 'thinly defended' D BY JULIUS MELNITZER For Law Times espite a Beeton woman's victory in what appears to be the largest person- called by the plaintiff without any competing evidence from the defence to contradict it." Th e case arose in August 2002, when Trevor Bryan was driving three passengers in a car owned by his grandmother, De- lores DeKoning. A serious acci- dent occurred that left passenger Katherine-Paige MacNeil with catastrophic injuries. Ontario Superior Court Justice Peter Howden awarded $18.4 million to MacNeil and E.V. Litigation & Financial Services Inc. Elaine G.Vegotsky, CMA, CFE, CFI Assisting you in Litigation & Forensic Accounting, Financial Investigations Suit e 900 4 5 Sheppar d Avenu e East, Willowdale, Ontario M2N 5W9 Telephon e o r Fax (416 ) 930-1370 (905) 731-5812 evlitigation@rogers.com her family. Th e award breaks down as follows: General damages (net after statutory deductible) ............$321,968.00 Loss of past income .................$18,730.33 Loss of future income ........$1,374,800.00 Loss of future interdependent relationship............................$190,300.00 Future care cost ...............$15,158,500.00 Family Law Act claims ...........$312,500.00 Prejudgment interest ............$214,228.87 Five-per-cent management fee ..................$836,180.00 As is readily apparent, about 80 per cent of the total award went to future care costs. "Expert opinion is critical when you get into quantifying future care costs," Woodin says. "Th ere's a huge debate both about the level of care and how you quantify the costs. Th e plaintiff s also argued for an infl ationary element on the health-care costs, another controversial issue that can make up a signifi cant com- ponent of a future care award." Still, Woodin acknowledges Vlit_LT_Mar17_08.indd 1 3/13/08 11:55:47 AM Secure your knowledge of insurance law Annotated Commercial General Liability Policy Provides a thorough, yet practical analysis of the IBC Form 2100 CGL "occurrence" policy on a clause-by-clause basis. Each section of the policy includes a historical overview, scholarly commentary, analysis and the most up-to-date case law from the insurer's and policyholder's perspective. Looseleaf & binders (2) • $245 Releases invoiced separately (1-2/yr) P/C 0437030000 • ISBN 0-88804-240-X / 978-0-88804-468-6 Accident Benefits in Ontario This resource is updated regularly with case summaries available online. 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"Th e award for loss of future interdependent relationship is the highest ever for that cat- egory, exceeding the previous high of $125,000," he says. "And more importantly, the judge accepted a methodical approach to the calculation of this head of damage, departing from the more or less arbitrary approach to previous awards." Th e mother's $160,000 por- tion of the Family Law Act claim is also a record high. As well, McLeish notes it's signifi cant that the award came from a judge sit- ting alone. "Previous awards ap- proaching these numbers came from juries," he says. Th e lawyer says the defen- dants' failure to call experts is "unexplainable." But maybe it's not. After all, the case involved signifi cant coverage issues. Among the defendants were Business Interruption Insurance, Second Edition Provides a comprehensive discussion of the principal issues to be considered or addressed in obtaining insurance, and pursuing and defending claims when business loss occurs. 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Perfectbound • 200 pp. • 2000 • $65 P/C 0943010000 • ISBN 0-88804-346-5 Visit us on our web site in October for a 20% discount Good Faith in Canadian Insurance Law This resource gives practitioners and insurance professionals the information they need when dealing with bad faith claims in insurance law. Looseleaf & binder • $98 • Releases invoiced separately (1/yr) P/C 0176030000 • ISBN 978-0-88804-465-5 Visit us on our web site in October for a 20% discount Wawanesa Mutual Insurance Co., State Farm Mutual Auto- mobile Insurance Co., and On- tario's underinsured fund. Th e fund entered into a Mary Carter agreement with McLeish early in the trial, and State Farm's only exposure was a family protection endorsement of $500,000. "State Farm didn't attend on the damages portion of the trial because it had been clear for some time that the damages were well in excess of the com- pany's exposure," says Michael Taylor of Toronto's Zarek Taylor Grossman Hanrahan LLP, who represented State Farm. Wawanesa, which insured the defendants for $1 million, de- nied coverage, mounted no de- fence, and didn't appear at trial. After the judgment was granted, Howden ruled that Wawanesa was liable for its policy. Still out- standing is the defendants' bad- faith claim against Wawanesa seeking indemnity for all dam- ages and costs assessed against them in the case. In any event, the conclusion of For a 30-day, no-risk evaluation call: 1.800.565.6967 CA041 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. www.lawtimesnews.com CA041 (LT 1-2x4 New).indd 1 10/14/09 10:11:53 AM LT1019 the Mary Carter agreement with the government coupled with the failure of Wawanesa and State Farm to take part in the trial left the defendants' personal lawyers, James Feehely and Colleen Butler of the law fi rm Feehely Gastaldi, to oppose the plaintiff s at the tri- al. "Feehely did a wonderful job with the resources he had avail- able," Taylor says, a sentiment McLeish shares. "Th e defendants' defence team did a wonderful job," he says. Still, Taylor agrees with Woo- din that defence experts would have provided Howden with dif- ferent perspectives on the dam- ages. "But did that make a sub- stantial diff erence in the ultimate judgment?" Taylor asks. "I'm not sure because any way you sliced it — from the plaintiff s' viewpoint, from the defendants' viewpoint or from the middle of the road — this was a big damages case." LT Sean Gosnell of Borden Ladner Gervais LLP Bruce W ebster and John Seigel of PricewaterhouseCoopers LLP Mark G. Lichty and Marcus B. S nowden James M. Flaherty and Catherine Chaplin Zingg Roger G. Oatley, John McLeish and contributing authors Anne E. Grant Roderick S .W . W insor Richard Krempulec, Q.C.

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