1981]
COMMENTS – COMMENTAIRES
Marier v. Air Canada: the Common Law Perspective
This note considers the validity of Dame Marier’s claim at com-
mon law. In this perspective the case raises two interesting ques-
tions: who is entitled to claim in an action for damages for loss
caused by the death of a human being, and what losses are com-
pensable if a cause of action exists? The judgments of the Superior
Court of Quebec and the Court of Appeal focused on the firsV
question, but it is the second that poses problems to the common
lawyer.
The position of the common law in cases of wrongful death
has never been very satisfactory. The original position at com-
mon law was that there could be no cause of action for the wrongful
death of a human being. It might be argued that this view is more
a statement of the practical result of other rules than a legal rule
itself. This practical result was caused by the fact that the wrongful
death would be a felony, and conviction of felony entailed for-
feiture of goods to the Crown, leaving nothing for the person in-
jured by the death of the deceased. The Crown’s claim to the
goods of the wrongdoer was ensured priority by the rule that in
those cases where the tort was also a felony, no civil action could
be maintained until the wrongdoer had been prosecuted. The case
that is regarded as the foundation of the common law rule is
Baker v. Bolton,1 a decision of Lord Ellenborough at nisi prius.
(It is curious that two of Lord Ellenborough’s decisions, Baker v.
Bolton and Stilk v. Myrick,2 both very poorly reasoned cases, have
been accepted as the “leading case” in their respective areas of the
law. A study of what makes a case a “leading case” in the common
law system is an interesting enquiry in its own right.) The decision
in Baker v. Bolton was accepted by the Court of Exchequer in
Osborne v. Gillett8 and by the House of Lords in The Amerika.4
The common law rule was changed by statute in 1846 by Lord
Campbell’s Act.0 The Act permitted an action by certain designated
relatives of the deceased, and originally permitted an action by the
wife, husband, and children of the person killed. Lord Campbell’s
1 (1808) Camp. 493; 170 E.R. 1033 (N.P.).
2 (1809) 2 Camp. 317; 170 E.R. 1168: 6 Esp. 129; 170 E.R. 851 (N.P.).
8 (1873) L.R. 8 Ex. 88.
4[1917) A.C. 38 (H.L.).
5 9-10 Vict., c. 93.
McGILL LAW JOURNAL
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Act became in Ontario The Fatal Accidents Act,0 which permitted a
claim to be brought “for the benefit of the wife, husband, parent
and child” of the person killed. The Act defined both “parent” and
“child” broadly but did not include illegitimate children7 and did
not broaden the meaning of the word “wife” or “husband”. This
would mean that only those who were lawfully married to the
deceased could sue.” The scope of those given a cause of action by
the legislation was broadened by The Family Law Reform Act,
1978, which provides that:
Where a person is injured or killed by the fault or neglect of another
under circumstances where the person is entitled to recover damages,
or would have been entitled if not killed, the spouse, as defined in
Part II, children, grandchildren, parents, grandparents, brothers and
sisters of the person are entitled to recover their pecuniary loss re-
sulting from the injury or death from the person from whom the person
injured or killed is entitled to recover or would have been entitled if
not killed, and to maintain an action for the purpose in a court of
competent jurisdiction 9
For our purposes, the word “spouse” is the crucial factor. That
word is defined in Part II, section 14(b):
“spouse” means a spouse as defined in section 1, and in addition includes,
(i) either of a man and woman not being married to each other who
have cohabited,
1. continuously for a period of not less than five years, or
2. in a relationship of some permanence where there is a child born
of whom they are the natural parents,
and have so cohabited within the preceding year, and
6R.S.O. 1970, c. 164.
7 The broadening of the category of legitimate children in The Legitimacy
Act, R.S.O. 1970, c. 242 (now repealed by The Children’s Law Reform Act,
S.O. 1977, c. 41) would have removed some of these problems.
SThis follows from the general position of the common law on marriage.
Only those who are validly married can claim any of the rights that flow
from the status of husband or wife. This has, of course, been significantly
broadened by legislation. As an example of the harsh application of the
basic common law position, see Ex p. C6t9 (1971) 22 D.L.R. (3d) 353 (Sask.
CA.). The common law has never had the idea of putative marriage except
to the extent that an order for maintenance could be made in an action for
nullity when the marriage was annulled (The Matrimonial Causes Act, R.S.O.
1970, c. 265, ss. 1 & 2). This legislation has survived the legislative changes
of 1978 (The Family Law Reform Act, 1978, S.O. 1978, c. 2). That legislation per-
mits a person who is not married to claim support in certain cases and con-
siderably broadens the former basis for support. I have found no case in
Canada or England where a person not lawfully married has ever claimed
under Lord Campbell’s Act or The Fatal Accidents Act.
9 S.O. 1978, c. 2, s. 60(1). The legislation of the other common law pro-
vinces of Canada is similar, but for the sake of simplicity, I shall confine
my discussion to the law of Ontario.
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COMMENTS – COMMENTAIRES
(ii) either of a man and woman between whom an order for support has
been made under this Part or an order for alimony or maintenance
has been madd before this Part comes into force.
“Spouse” is also defined in section 1:
(f) “spouse” means either of a man and woman, who
(i) are married to each other,
(ii) are married to each other by a marriage that is voidable and has
not been voided by a judgment of nullity, or
(iii) have gone through a form of marriage with each other, in good
faith, that is void and are cohabiting or have cohabited within the
preceding year.
On the facts of the case, Marier v. Air Canada, the plaintiff would
have a cause of action under section 60 by virtue of section 14 (b) (ii).
The first question raised by the facts of Marier v. Air Canada
is thus easily answered at common law, at least on the basis of the
legislation in force in Ontario. What can one say about the prin-
ciples that might underlie the case? There are two issues that have
to be considered. The first is the issue of the purpose of the law
of torts and the second has to do with the application of any
torts principle in the special facts of Marier v. Air Canada.
Tort law concerns the “allocation of loss incident to man’s activi-
ties in modern society.”‘I0 The principal problem in the law of torts is
the development of a justification (or a set of justifications) for
shifting the loss from the person on whom it has fallen onto some-
one else. This problem is caused by the existence of conflicting
pressures. The first is the notion that one who is caused harm or loss
by the act of another should be compensated for the loss. The second
is the belief that only certain kinds of action should attract
liability, and it is this which leads to the requirement that the
act involve fault in some form. Fleming suggests that the view
expressed in the second concern was the dominant view of the
law of torts.1 He points out that there is no social value in shifting
loss if the only effect is to impoverish one person rather than an-
other. An emphasis on fault can justify the shift of a loss on the
ground that a person should be responsible for actions accompanied
by some sense of blameworthiness. The more generally accepted
(i.e., losses caused by
modern view is to regard certain losses
accident as opposed to the intentional infliction of harm) as
necessarily incident to modern living, and that such losses should
be borne by those who benefit from that activity. 12 This point of
10Fleming, The Law of Torts, 5th ed. (1977), 7-10.
11 Ibid.
12 Ibid., 9-10.
McGILL LAW JOURNAL
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view easily justifies the imposition of liability on Air Canada for
the death of Dr Desmarais. Air Canada and those who fly benefit
from the provision of passenger services and should therefore
bear the costs of the losses that, statistically, are certain to be
incurred by those passengers who die in crashes.13 Thus we could
justify the imposition of liability had Dr Desmarais been injured
rather than killed. It is easy to show that the losses for which he
could receive compensation would include the effect of his injuries
on his economic situation.’
‘3 I shall ignore the problem caused by the fact that, unlike some situations
of tort liability, the relationship of Dr Desmarais and Air Canada was
based on a contract. It is possible, in theory at least, for the parties to a
contract to allocate the risk of loss that may be caused by breach. Thus
the contract, ignoring for the moment the effect of The Carriage By Air Act,
S.R.C. 1970, c. C-14, could provide that the passenger agrees to release the
carrier from liability for injury or death in consideration of, for example,
a reduction in the fare charged. This raises the very difficult case of the
extent to which the values represented by the law of contracts should
supersede the values of the law of torts. This issue was the focus for an
interesting comparison between the civil and common law approaches to
civil liability. Examining the problem from the civil law position, Mr Nicolas
Palmieri-Egger said, in an unpublished paper, Developments in Civil Liability:
from Contract and Delict to Imposed and Assumed Duties, presented to the
Canadian Association of Law Teachers, 3 June 1980:
The better theory is that the victim shall always obtain compensation,
Society as a whole has, indeed, superior ability to absorb the cost of
compensation. The loss should not rest on the victim simply because of
technicalities and sophisticated characterizations of the “regimes” of
liability. The loss ought to be passed on by appropriate price calculation
to a wider section of the public. This development will certainly result,
eventually, in a decreasing need for a sharp distinction between the
two regimes of liability. But it can only develop correctly if the funda-
mental concept is affirmed, that the innocent victim must have all his
damages, notwithstanding exemption clauses and theories of distinction
between contract and delicts.
The same position was taken from the common law perspective by Pro-
fessor B.J. Reiter in a paper delivered at the same meeting: The Interrela.
tionship between Contract and Tort in Canadian Common Law (unpublish-
ed). It is justifiable, therefore, to regard the case as one where, were it not
for The Carriage by Air Act, any purported allocation of risks through
contract would be ineffective and the right of the passenger to recover would
be governed entirely by tort duties. If there are problems justifying the en-
forceability of contractual allocations of the risk of loss, there are as many
in justifying the effect of the Warsaw Convention under The Carriage by
Air Act.
-14This follows generally from the fact that the purpose of damages in the
law of torts is to put the person injured in the position, so far as money
can do so, that he would have been in had the injury never occurred. This
is the reliance measure of recovery. See Fuller & Perdue, The Reliance
Interest in Contract Damages (1936) 46 Yale L.J. 52 & 373.
1981]
COMMENTS – COMMENTAIRES
If we can justify Dr Desmarais’s recovery for his lost earnings
we are treating his ability to earn money as an economic asset that
has been harmed by the defendant’s act. The economic effect is the
same if the act of the defendant had damaged a truck or building
owned by the plaintiff and from which he generated his income.
The justification for the kind of liability found in The Fatal Ac-
cidents Act can be seen as an extension of the view that part of
the loss suffered by the deceased is harm to an economic asset.15
Thus those who might by virtue of their relationship to the de-
ceased reasonably have expected-‘
to share in the economic asset
that belonged to the deceased, are entitled to claim for the loss
suffered by the fact that the economic benefits arising from the
relationship are cut off. If the deceased had lived long enough to
recover a full indemnity 1 from the tortfeasor, it should follow that
the right of any dependent to further relief should be excluded.
The recovery of an indemnity from the tortfeasor has had (or is
deemed to have had) the effect of providing the equivalent of the
economic asset lost by the injury. Where the deceased has not
recovered a full indemnity, those who might benefit if the de-
ceased had not been killed are entitled to recover what they have
lost. In theory, the recovery under each of these heads should be
the same if we assume that the deceased’s estate can also claim in
1′ An interesting analogy is the claim of the master for the loss he has
suffered by the injury to his servant; the per quod action. The modem
analogy is to the right of a corporation to recover for the loss it has suffered
by injury to its shareholders and employees. See Hansen and Mullan,
“Private Corporations in Canada, Principles of Recovery for the Tortious
Disablement of Shareholder/Employees” in Klar, Studies in Canadian Tort
Law (1977), 215.
leGThe legal analysis of the consequences of both marriage and parenthood
is (or certainly, was) very simple. A woman who was married to a man
was assumed to be dependent. A woman who was not married was assumed
not to be dependent. At least there was no analysis of the fact of dependence.
Modem legislation has tended to expand the notion of dependence by giving
those who are not married reciprocal rights of support. It seems to be un-
necessary to focus any attention on the status of the parties. What is im-
portant is the fact of -dependence. The use of the phrase “reasonably
have expected” is then a test for determining those who have been harmed
by the defendant’s act, regardless of the legal relationship between the
claimant and the deceased: see Deech, The Case Against Legal Recognition
of Cohabitation (1980) 29 I.C.L.Q. 480.
17 1 am prepared to assume for the purposes of this paper that the
actuarial calculations are an adequate measure of what is a full indemnity.
Although this is at best a very dubious assumption, an investigation of
alternative kinds of damage awards (e.g., periodic payments) is beyond the
scope of this paper. See Fleming, Damages: Capital or Rent
(1969) 19
U.T.LJ. 295.
McGILL LAW JOURNAL
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such fashion that whatever the deceased would not have spent on
his dependents would have been distributed by his will or on an
intestacy.
There also seems to be a moral dimension to the need for like
results, whichever of the two bases for the claim against the tort-
feasor is used. There is something offensive about a result that
would make it cheaper to kill than to injure. And as this discussion
concerns the allocation of the risk of economic loss caused by
accident, this analysis would preserve the results that are now
uniformly reached in cases where the person killed has had little or
no income. The issue of compensation for emotional loss and grief
will be discussed later.
This analysis suggests that the loss suffered by the plaintiff in
Marier v. Air Canada should be shifted to the defendant. Dr Desma-
rais was an economic asset 8 to his former wife and his death de-
prived her of the benefit that her claim against him for maintenance
gave her. To deny her claim results either in the enrichment of his
estate (at her expense if the estate can maintain an action for
what amounts to the replacement of the economic asset lost by his
death to which she has no claim’ 9), or an incomplete shift of the
losses caused by the act of the defendant. Neither of these results
seems satisfactory, as might be made clearer by an example. If we
assume for purposes of illustration that Dr Desmarais would have
earned $500,000 over the balance of his expected life, we could
produce the following table:
Total Earnings
$500,000
Amount spent on himself
Amount spent on children & other relatives
Amount paid to his former wife
Net increase in estate
400,000
$100,000
Of these amounts, the amount that would have been spent on
himself is not recoverable. Had it been received it would have been
spent and would not have gone to his relatives or to his estate.
The amount that could have been spent on his children or relatives
would be recoverable by them. 0 The amount that would have in-
$200,000
100,000
100,000
18S. 14(b)(ii) of The Family Reform Act recognized the importance of the
economic basis for recovery and, at the same time, assumes dependence and
a reasonable expectation of future benefits.
“)I am assuming here that the claim to maintenance was only for the
parties’ joint lives, so that the plaintiff would have no claim against Dr
Desmarais’s estate except for any arrears that had been allowed to build up.
201 am assuming that these claims come up under any applicable legisla-
tion, The Fatal Accidents Act or The Family Law Reform Act.
1981]
COMMENTS – COMMENTAIRES
creased his estate should be recoverable by his estate. This latter
result would permit two desirable consequences to follow. First,
any claim by creditors would be protected. (It is hard to see why
creditors should be prejudiced either by denying the estate any
recovery or by permitting those who would succeed to the balance
left in the estate to recover in priority to the creditors.) Second,
the balance of the estate could then go either in accordance with
the deceased’s will or as on an intestacy. The advantage of this is that
those entitled to take under a person’s will could comprise a wider
class than those entitled to claim under The Fatal Accidents Act
or The Family Law Reform Act. If the amount that would have
gone to his former wife is not recoverable, then either the amount
of damages payable by the defendant is reduced from $300,000 to
$200,000 or the claim under the estate is increased from $100,000 to
$200,000. While the second of these may be preferable to the first,
it remains undesirable. Why should those taking through the estate
be better off because the money that would have gone to his
former wife had he lived does not now have to be paid? It makes
even less sense to give the defendant the benefit.
This argument suggests that on principle the former spouse of a
person killed should be entitled to recover the pecuniary loss caused
by death. This loss will be the present value of the maintenance
payments that he or she might reasonably have expected to receive.
There is no room for an argument that the defendant is unfairly
treated by this. This is so for the following reasons. First, the de-
fendant, who is, after all, engaged in an enterprise where death is
probable if an accident should happen, cannot claim to be surprised
by the imposition of liability to an amount dependent on the earn-
ing potential of the victim’ 21 Second, the actual amount of the
damages to which the defendant is liable is, to some extent, in-
dependent of the number of claimants. Thus on the figures that
have been given, the proper measure of recovery for the economic
loss should be $300,000 regardless of whether the claim is brought
by the estate or anyone else. This amount might be slightly larger
if, for example, the children were more numerous, younger, or if
Dr Desmarais had been more generous so that the amount that
would be. spent on the children were $150,000 rather than $100,000.
But, once again, the defendant must take the generosity of its
21 Once again, I am avoiding any discussion of the justification for an
award of damages based on earnings as opposed to a flat rate award for
death. So long as we recognize the right of one individual to earn more than
another, there seems to be no escape from the award that varies with earning
potential. See Atiyah, Accidents, Compensation and the Law, 2d ed. (1975).
McGILL LAW JOURNAL
[‘Vol. 26
victims as it finds it, and presumably its victims, taken over all,
will be of average generosity and fruitfulness.
There does not seem to be much room for an argument that any
practical consideration should limit the amount recoverable by
excluding any person other than those in a narrow class of “ex-
pected” beneficiaries.P The touchstone of recovery is the economic
dependence of the plaintiff on the deceased (or economic benefit
derived by the plaintiff from the deceased) and the reasonable like-
lihood of the continuance of the dependence on benefit. The total
potential earnings of the deceased (less whatever amount he might
spend on himself) set an upper limit to the amount recoverable
and, as has been shown, there is no reason why the defendant
should benefit from the fact that the deceased may have chosen
(or, on the facts of Marier v. Air Canada, have been compelled) to
pay a benefit to someone outside the class of beneficiaries approved
by the modem analogue of Lord Campbell’s Act. Nor is there any
reason why the expected pattern of benefits should be disturbed
by denying recovery to one beneficiary and increasing the recovery
of another beyond the amount that the second person might reason-
ably have expected to receive.
The result that would be reached under section 60 of The Family
Law Reform Act, is, therefore, preferable to that which is reached
by the Quebec Court of Appeal.
The second major issue concerns the claims for which compen-
sation is payable. The original act of 1846 limited recovery to the
economic loss caused by the death. Thus a wife and children might
obtain a fairly large award if the husband and father were killed,
while parents often received damages that were little better than
nominal for the death of a young child. The same thrust is carried
forward into section 60. That section provides that the “pecuniary
… death” can be recovered. The justification
loss resulting from
for that recovery has already been discussed. Section 60 is inno-
vative in another respect. At common law, the dependents had no
cause of action if the victim were injured but not killed. This is
changed by section 60.23 The denial of recovery in case of injury
could be justified, at least in part, if the person injured received
the full economic equivalent of his (economic) loss. This amount
would then be available for him to distribute as he sees fit. So long
as full compensation is paid for any medical expenses and other
increased costs due to the accident, there is no economic reason
22 See supra, note 16.
23This change is achieved by adding the word “injured” into the first and
eighth lines.
19811
COMMENTS – COMMENTAIRES
why the pattern of benefits to dependents should be necessarily
disrupted. It is not clear therefore what losses will be compensable
under section 60 in respect of the “pecuniary loss resulting from
the injury.. .”. Section 60 recognizes that those closely related to
the person injured or killed may incur expenses or invest time that
would not be recoverable under any of the economic arguments
that have been made.2 Section 60(2) (d) adds a significant new
head of recovery. This permits recovery for non-pecuniary loss. The
scope of this clause is not clear. It does not use the word “death”
and appears to be confined to cases where the person injured does
not die. This is an awkward limitation. It reintroduces the discrep-
ancy between the amount recoverable in cases of injury and cases
of death and in principle this distinction, on this head of damage,
is hard to defend. The loss of “guidance, care and companionship”
will be essentially the same if the person injured is totally incapa-
citated both physically and mentally or killed. The extension of
recovery under section 60 provides the basis for an argument that
damages for non-pecuniary loss should be awarded in cases of fatal
accidents.
The whole topic of damages for non-pecuniary loss is extremely
difficult and cannot be extensively analyzed here. Recent cases in
Canada and the United States have focused on the proper award
for pain and suffering arising from personal injuryF 5 I want to
24This right comes from s. 60(2) which reads:
60(2). The damages recoverable in a claim under subsection 1 may
include,
(a) actual out-of-pocket expenses reasonably incurred for the benefit of
the injured person;
(b) a reasonable allowance for travel expenses actually incurred in
visiting the injured person during his treatment or recovery;
(c) where, as a result of the injury, the claimant provides nursing,
housekeeping or other services for the injured person, a reason-
able allowance for loss of income or the value of the services; and
(d) an amount to compensate for the loss of guidance, care and com-
panionship that the claimant might reasonably have expected to
receive from the injured person if the injury had not occurred.
The courts interpreted Lord Campbell’s Act very strictly and disallowed,
for example, claims for funeral expenses incurred by the relatives of the
deceased. Such claims were recoverable where the death was caused by
a breach of contract where the plaintiff and defendant were in a con-
tractual relation. This is not, of course, the situation in Marier v. Air
Canada. See Jackson v. Watson [1909] 2 K.B. 193 (CA.); Sellers v. Best
[1954] 1 W.L.R. 913 (Q.B.).
25 See Arnold v. Teno [1978] 2 S.C.R. 287; Andrews v. Grand and Toy
Alberta Ltd [1978] 2 S.C.R. 229 and Thornton v. Board of School Trustees of
School District No. 57 (Prince George) [1978] 2 S.C.R. 267. See also Paterson,
Loss of Future Income in Actions for Damages (1980) 26 McGill LJ. 114,.
McGILL LAW JOURNAL
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investigate only one aspect of the problem since it is particularly
applicable in the case of Marier v. Air Canada. The problem is high-
lighted by the following comments of the Ontario Law Reform
Commission in its examination of torts and family law. The Com-
mission discussed the problem of the claim under The Fatal Acci-
dents Act for pecuniary loss and said:
the marital relationship had been? Furthermore,
When a study is undertaken, the very difficult question of non-pecuniary
loss should be examined. While the Commission has great sympathy for
the wife whose husband is totally comatose as a result of an injury,
what dollar and cents value can be placed on the loss of his affection
and companionship? If an assessment of that value were to be made by
the courts, would not this turn each case into an investigation of just
how satisfying
in
situations where minor children would have claims, there would be a
problem in reaching settlements without the approval of the courts.
The English Law Commission, in its Published Working Paper No. 19,
referred to earlier in the Chapter, did not come to any conclusion on
this issue.
For the present, however, the Commission considers that the wisest
course of action would be to place the law relating to non-fatal injuries on
a similar basis to that under The Fatal Accidents Act.26
This reasoning is unsatisfactory. Any plaintiff can always choose
whether or not to advance a claim for compensation under any
particular head of damage. It may, for example, be inferred that
the plaintiff in Marier v. Air Canada could not successfully support
a claim for substantial non-pecuniary loss arising from the death
of her former husband. The amount of “guidance, care and com-
panionship” she would reasonably be expected to receive from him
in the future would be very small. On the other hand, a woman (or
children) who has clearly suffered a significant loss in this respect
should not be denied any right to recover just because other women
or children may be asked embarrassing questions. There is no reason
to regard a claim for compensation under this head as unman-
ageably subjective just because the actual process of quantification
is necessarily based on highly subjective factors.7 The fact of the
loss can easily be shown by objective evidence, or at least evidence
that is no less subjective than that which establishes the existence
of pain and suffering.2
26 Report on Family Law, Part 1, “Torts” (1969), 109, 110.
27 See, e.g., the judgment of the Supreme Court of Canada in Andrews v.
Grand and Toy Alberta Ltd, supra, note 25.
28 It is ironic that at the same time as the effect of the Warsaw Convention
is to restrict the amount recoverable, its application has permitted a broaden-
ing of the heads of recovery: Preston v. Hunting Air Transport Ltd [1956]
1 Q.B. 454. The Court took the word “damage” in art. 17 as being wider
than the words in Lord Campbell’s Act (which are the same as The Family
Law Reform Act).
19811
COMMENTS – COMMENTAIRES
The question of the range of non-pecuniary losses for which
compensation can be claimed under the law of torts can only be
answered by considering the values that the law of torts exists to
protect. If we think that people should “suffer the slings and
arrows of outrageous fortune” rather than sue the defendant under
the law of torts, that is a coherent and possible position for a
society to take. If, alternatively, we think that money should be
made available to help assuage the hurts (or at least some of them)
inflicted on unfortunate members of society, there is no reason to
restrict artificially the extent of recovery. Once again, the defendant
who knows that its carelessness could easily result in death to
others, cannot complain that it has been unfairly surprised by
being asked to compensate those who are bereaved. There seems
to be no more reason to deny recovery for non-pecuniary losses
arising from the death of another than there is to deny non-
pecuniary loss in cases of personal injury that does not cause
death to the person injured. If we allow damages for pain and
suffering in the second case, we should do so in the first.
John Swan*
* Professor of Law, University of Toronto.
