Law Times

PAGE 20 FOCUS APRIL 28, 2008 / LAW TIMES screen of the bedroom window in a relative's fifth-floor apartment. n June 5, 1997, two-year- old Harvinder Sandhu fell through the broken Court upholds $17-million personal injury award O BY GRETCHEN DRUMMIE Law Times He almost died and was in a coma for several weeks. Nearly 10 years later, the boy, who suffered brain injury but had no visible afflic- tions as a result of the trauma, was awarded what at the time of trial was considered the highest award ever made in a personal injury case in Canada — a total $17 million, factoring in interest. The Ontario Court of Ap- peal has upheld the jury's 2006 verdict in Sandhu v. Wellington Place Apartments, making it the largest assessment of damages ever approved by an appellate GILBERTSON DAVIS EMERSON LLP BARRISTERS AND SOLICITORS practice restricted to CIVIL LITIGATION, INSURANCE LAW John L. Davis Professional Corporation Richard Hayles R. Lee Akazaki James W. Wilson Nazanin Aleyaseen Jody W. Iczkovitz Angela Emerson John L. Davis Counsel: James E. Adamson 20 Queen Street West, Suite 2020 Toronto, Ontario M5H 3R3 Tel: (416) 979-2020 Fax: (416) 979-1285 email: office@gilbertsondavis.com court in this country. And the court has also sent a message that catastrophic brain injury is to be treated the same as devastating visible injuries, says Kirk Stevens, who with Earl Cherniak acted for Sandhu and his family on the appeal. "The Court of Appeal rejected any suggestion that brain injury is less serious than any other visible injuries," says Stevens, of Lerners LLP. He says the court has sig- nalled it "will not interfere with trial level assessments of damage as long as they are supported by the evidence and the trial is fair." "This case confirms that sur- vivors of severe brain injury can receive the maximum in general damages," said Nancy Ralph, who acted for the Sandhus at trial, in a press release. The landlord was found liable for not having re- paired the broken screen, despite numerous requests over three weeks prior to the tragedy. The panel, made up of justices Marc Rosenberg, Janet Simmons, and Jean MacFarland rejected the defen- dant's request to re- duce the award. Sandhu suffered to balk at upholding awards in brain injury cases despite the lack of visible evidence of damage that you get in cases of paraplegia and quadriplegia." He adds the court held that "you can't treat the trilogy cap as the upper part of a scale." The court has said you cannot treat the upper limit of $311,000 as being defined by quadriplegia and work down from there. on its own facts and the jury or judge has to make a decision as to whether or not this injury was so catastrophic that the cap should be awarded," says Stevens. "The court held that in a brain damage case the cap can be awarded, and it noted that there were several other brain injury cases in which the cap was awarded, including Baynton v. Rayner." According to the judgment: "Each case has to be assessed "The upper limit for non-pecu- niary damages in catastrophic injury cases is not to be used as a The Court of Appeal rejected any suggestion that brain injury is less serious than any other visible injuries. a catastrophic frontal-lobe brain injury and will require profes- sional care around the clock for the rest of his life. He will never develop a mental age beyond 12 years, nor be gainfully employed, which places an enormous bur- den on his family. At trial, the boy was awarded $12.9 million for future care, and $4.2 million for guardianship costs, interest, and damages. He also received $311,000 for non- pecuniary general damages, the maximum allowed in Canada. And that was what Stevens calls the "subtext" of the case. "In this case the injuries were not visible," says Stevens. "The difficulty with his life is brain damage, which is not visible, and in essence the court has sent a message that as long as there's evidence to sustain an award, the Court of Appeal will give effect to it and the court is not going Malach + Fidler LLP Mediation & Arbitration Services scale against which non-pecuniary claims for all other injuries are to be measured: see Howes v. Crosby. In other words, it is inappropriate to evaluate Harvinder's injuries solely on the basis of some notion- al comparison with an imagined worst case scenario. While awards for non-pecuniary damages in similar cases should achieve a de- gree of consistency and uniformi- ty, this kind of comparative analy- sis offers only limited assistance. "The assessment of non-pecu- niary damages ultimately depends on the mix of factors peculiar to each particular plaintiff: see Kouk- ounakis v. Stainrod," the judgment continued. "It is apparent from her charge that the trial judge [Justice Carolyn Horkins], was of the view that the maximum award was appropriate for Harvinder. "We are of the view that it was appropriate for the jury to award See Awards, page 21 A Fair Settlement Is No Accident Jon Fidler, C.Med. David Dempster 439 University Avenue uit e 1401 S Toronto, Ontario M5 G 1Y8 (416) 598-1667 Bernard Younder, President, 121 Willowdale Ave., Ste. 305, Toronto, ON, M2N 6A3 Tel. 416-218-0110, Fax 416-218-0114, Email tssc@wwonline.com www.lawtimesnews.com (416) 598-5222 (fax) Stephen Malach,Q.C. Ivan Luxenberg Uni t 30 Wertheim Court 6 L4 B 1B (905) 889-1667 e-mail: mediation@malach-fidler.com www.malach-fidler.com Richmond Hill, Ontario 9 (905) 889-1139 (fax)

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