COMMENTS
CHRONIQUES DE LEGISLATION ET DE JURISPRUDENCE
The Implications of Lindal
Edward Veitch*
In its decision in Lindal v. Lindal, the Sup-
reme Court expressed again its desire to lay
out an orderly approach to the calculation of
personal injury and wrongful death awards.
After a brief examination of the origins of the
non-pecuniary head of damages and of re-
cent developments in the assessment of such
damages, the author evaluates the implica-
tions of the Lindal decision. The purpose of
the non-pecuniary head of damages, as
established in the 1978 trilogy of damage
cases and confirmed in Lindal, is to provide
the victim with resources with which he can
purchase solace for his injuries. The Court
has limited the award to no more than
$100,000. But Mr Justice Dickson added an
element of complexity to that rule in his dicta
which would permit a court to breach the
$100,000 limit in the presence of changed
economic conditions and the erosion of
money value. The precise circumstances
which would justify an increased award re-
main undefined, as does the effective base-
date for measuring the erosion of money
value. It appears that, despite attempts to
rationalize awards for non-pecuniary dam-
ages, trial courts, and even the Supreme
Court itself, continue to measure awards by
comparison, relying for guidance upon ata-
vistic impulses of sympathy and the dis-
carded notion of “lost assets”.
Dans l’arr~t Lindal, ]a Cour supreme a une
fois de plus exprim6 son souci d’dtablir une
approche m6thodique pour calculer les dom-
mages-intdr&ts vers6s pour des bfessures cor-
porelles. L’auteur retrace les origines du
chef de dommages non-p6cuniaires et ex-
pose les d6veloppements r6cents dans le do-
maine de l’6valuation de tels dommages,
pour ensuite examiner les effets de l’arret
Lindal. Le but du chef de dommages non-
p6cuniaires a 6t6 6tabli dans trois arr~ts de la
Cour prononcds en 1978, et confirm dans
l’arrt Linda: il s’agit de donner les res-
sources n6cessaires A la victime pour qu’elle
soit addquatement d~dommag6e des pr6ju-
dices subis. La Cour a fix6 A 100 000 $ la
somme totale pouvant ainsi 6tre versde. Dans
son obiter dictum, l’honorablejuge Dickson
d6montre que la r~gle est plus complexe: I1
sugg~re que la Cour pourrait d~passer la li-
mite maximale de 100 000 $ afin de tenir
compte de l’6rosion mon6taire et de grands
changements dans la situation 6conomique.
On n’a pas encore d6fini quelles circons-
tances sauraient justifier une telle augmenta-
tion, ni quelle date de base serait retenue
pour 6valuer l’drosion mon6taire. 11 semble,
malgr6 les efforts de rationalisation des dom-
mages-int6r~ts non-p~cuniaires, que les tri-
bunaux de premiere instance et meme ]a
Cour supreme, continuent h 6valuer les dom-
mages-int6rets par voie de comparaison,
fondant en effet leurs d6cisions sur des senti-
ments ataviques de compassion et sur la no-
tion d6pass6e de “perte d’actifs”.
*Dean of the Faculty of Law, University of New Brunswick.
1982]
COMMENTS
Synopsis
Introduction
I.
H.
HI. The Implications of Lindal
Origins of the Non-Pecuniary Head of Damages
Recent Developments in the Assessment of Non-Pecuniary Awards
A. Components of the Award
B. Changed Economic Conditions and the $100,000 Limit
Conclusion
Introduction
At nineteen years of age, Mr Lindal was injured in an accident while a
passenger in a vehicle driven by his brother. The car struck a telephone pole
causing Mr Lindal to suffer the permanent loss of control of his limbs, some
impairment of his speech and considerable disordering of his personality. His
resulting fits of depression, coupled with paranoia, rendered him irritable,
erratic and quite unable to accept his personal tragedy. The trial judge
awarded damages in the amount of $454,000, of which $135,000 comprised
the non-pecuniary assessment.’ The learned Judge found that the exceptional
circumstances of the case justified the breaching of the upper limit of
$100,000 for intangible harm set by the Supreme Court of Canada in 1978.2
The British Columbia Court of Appeal 3 did not agree with that finding and
reduced the award to the ceiling figure. At the same time the Court declined
to hear evidence on the erosion of money value because the evidence had not
been introduced at trial. In the subsequent appeal to the Supreme Court of
Canada, 5 Mr Justice Dickson reaffirmed the upper limit, addressed the poli-
‘Lindal v. Lindal (1978) 90 D.L.R. (3d) 668 (B.C.S.C.).
2Andrews v. Grand & Toy Alberta Ltd [1978] 2 S.C.R. 229, (1978) 83 D.L.R. (3d) 452
[hereinafterAndrews; cited to S.C.R.]; Arnoldv. Teno [1978] 2 S.C.R. 287, (1978) 83 D.L.R.
(3d) 609 [hereinafter Teno ; cited to S.C.R.]; Thornton v. Board of School Trustees of School
DistrictNo. 57 (Prince George) [1978] 2 S.C.R. 267, (1978) 83 D.L.R. (3d) 480 [hereinafter
Thornton; cited to S.C.R.]. These cases are referred to collectively as the trilogy.
3Lindal v. Lindal (1981) 115 D.L.R. (3d) 745, (1981) 25 B.C.L.R. 381 (C.A.).
4The British Columbia Supreme Court found that Lindal, although less disabled physically
than the parties in the trilogy, had suffered greater mental damage. On the other hand, the Court
of Appeal found the plaintiffs in the three earlier cases to be immeasurably more disabled.
5Lindal v. Lindal (1981) 129 D.L.R. (3d) 263, (1981) 39 N.R. 361 (S.C.C.). See also
annotation by Osborne in (1982) 19 C.C.L.T. 1, 3-8.
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[Vol. 28
cies implicit in such a conventional award and, while encouraging argument
on the issue of inflation, peremptorily resolved the debatable question of the
effective date of measurement by selecting 19 January 1978, the date of the
Court’s judgment in the well known decisions in Andrews, Teno and
Thornton.6
The expressed desire of our highest Court to lay out an orderly structure
for the calculation of personal injury and wrongful death awards finds further
expression in the Lindal decision. It is now appropriate to consider briefly the
origins of the non-pecuniary head of damages, to examine its development up
to the present and more importantly, to assess the implications of Lindal.
I.
Origins of the Non-Pecuniary Head of Damages
In the calculation of pecuniary or compensatory damages we have now
passed from discussions of fairness 7 as between plaintiff and defendant to the
pursuit of perfect compensation,’ albeit with occasional dissent.9 Yet, in the
calculation of the non-pecuniary losses, compensation has never formed the
basis for evaluation of the monetary substitute which has been offered by the
courts to the plaintiff as solace for his distress. This result is clear from a
reading of a House of Lords decision in a Scottish appeal of only a decade
ago.10 The dispute concerned a claim by relatives against an employer for the
death of their kinsman. The remedy sought was assythment, which itself was
derived from the older claim for wergeld or blood-money. The basis of the
claim lay in the buying-off of vengeance, often provoked by a perceived
element of intent, which over time has metamorphosed into a sum of money
which serves as the acknowledgement, rather than as compensation, for the
plaintiff’s pain, grief and distress. While the remedy was measured originally
on a tariff scale reflecting social status, in modern times this has become a
6Supra, note 2.
‘See, e.g., Rowley v. London and North Western Railway Co. (1873) 8 Ex. D. 221,
[1861-731 All E.R. Rep. 823; Phillips v. London and South Western Railway Co. (1879) 5
Q.B.D. 78, [1874-80] All E.R. Rep. 1176 (C.A.).
gAndrews, supra, note 2, 240-2.
9See, e.g., H. West & SonsLtdv. Shepherd [1964] A.C. 326, [1963] 2 All E.R. 625 (H.L.);
Taylorv. University of Saskatchewan (1955) 15 W.W.R. 459 (Sask. C.A.); Yawney v. Clayton
Rural Municipality (1956) 1 D.L.R. (2d) 65, 70-1 (Sask. C.A.) per Procter J.A.; Ficko v.
Thibault (1967) 59 W.W.R. 500, 507-8 (Sask. C.A.); MacDonald v. Deson (1970) 73
W.W.R. 241 (B.C.C.A.).
“McKendrick v. Sinclair [1972] S.L.T. 110 (H.L.), affig [1971] S.L.T. 234 (2d Div.), aff/g
[1971] S.L.T. 17 (Outer House). See also the earlier decision in Eisten v. North British
Railway Co. (1870) 8 M. 980 (1st Div.).
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CHRONIQUE DE JURISPRUDENCE
conventional award.'” The early English cases ‘ give scant indication of the
basis of the award and in light of the tradition of global awards, there is little
hint of the evaluation of the intangible component.
II.
Recent Developments in the Assessment of Non-Pecuniary Awards
The non-pecuniary award ancillary to the compensatory award, de-
veloped in the United States and Canada after the Second World War. This
development has been attributed to the following factors: 3 the growth in the
use of contingency fees, the markedly increased leading of demonstrative
evidence particularly before juries and the affluence of North America as
compared to Europe. These factors in turn culminated in the per diem
argument for pain and suffering, the errors of which were recognized in the
context of non-pecuniary awards in Canada in the decision in Bisson v. Corp.
ofPowell River. 4 Before 1978, there was some academic examination of the
proper assessment of the non-pecuniary award which influenced the ultimate
decision of the Supreme Court of Canada in 1978.” For example, Professor
Ogus 16 articulated three possible modem justifications for a substantial award
for distress. He suggested that it might be approached objectively by placing a
value on the physical and mental capacities of the human being which would
be neither reduced nor enhanced by the plaintiff’s use of these capacities.
Alternatively, he argued that assessment might be done subjectively by
evaluating a particular plaintiff s need for solatium. And finally, he suggested
that since the capacities of the individual were beyond measure in cash, it
would be preferable for the award to mirror the costs of substitutes to console
the victim. This last formulation was adopted by Mr Justice Dickson in
Andrews although it has not gone unnoticed that the distinguished Justice
appeared to run the three justifications together. ‘
“See Veitch, Solatium – A Debt Repaid? (1972) 7 Ir. Jur. n.s. 77, where developments
under Irish and Scottish law are examined.
“See, e.g., Scott v. Shepherd (1773) 3 Wils. K.B. 405, (1773) 95 E.R. 1124; Pippin v.
Sheppard (1822) 11 Price 400, (1822) 147 E.R. 512 (Exch.). See also O’Connell & Bailey,
The History of Payment for Pain & Suffering [1972] U. Ill. L.F. 83.
“See O’Connell & Simon, Payments for Pain & Suffering: Who Wants What, When &
Why? [1972] U. Ill. L.F. 1, 4-5.
14[1968] 62 W.W.R. 707, 725-6 (B.C.C.A.)per Bull J.A., affd [1968] 64 W.W.R. 768
(S.C.C.).
I’Supra, note 2.
‘6Ogus, DamagesforLostAmenities: Fora Foot, a Feeling or a Function (1972) 35 M.L.R.
1; A. Ogus, The Law of Damages (1973) 195; and earlier, Kahn-Freund, Expectation of
Happiness (1941) 5 M.L.R. 81.
“Kar, The Assessment of Damages for Non-Pecuniary Losses (1979) 5 C.C.L.T. 262,
266-7; McLachlin, What Price Disability? A Perspective on the Law of Damages for Personal
Injury (1981) 59 Can. Bar Rev. 1, 48-9. Conflating the three justifications has since become
something of a tradition with Canadian trial judges. See, e.g., K. Cooper-Stephenson & I.
Saunders, Personal Injury Damages in Canada (1981) 369-70.
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Some lower courts have accepted the notion of restraint ‘ but not the
$100,000 ceiling per se; others have rejected the upper limit or confused the
formulation. 9 One jurisdiction appears ambivalent.” Not surprisingly there-
fore, Mr Justice Dickson took the opportunity presented by Lindal to reassert
the earlier policy of the Court. Thus he confirmed the Court’s belief that no
amount of cash can compensate for intangible losses and that the gravity of the
injury should not determine the award. By adopting this so-called “function-
al” approach, courts must now be concerned with the awareness or apprecia-
tion of the victim of his losses and be convinced of the victim’s potential use
of the substitutes which dollars can purchase. 21 In this assessment, the lower
courts have been reminded that they must strive (a) to avoid overlapping with
the economic or compensatory award and (b) to adopt a policy of moderation
reflecting the concerns of society about the inflation of awards. It was also
made clear that assessments must eschew both feelings of sympathy and
desires for retribution. Furthermore, the Supreme Court upheld the ceiling
figure of $100,000 on the twin bases of a need for uniformity of awards and a
desire for predictability for the purposes of advice and settlement. Mr Justice
Dickson recognized the cogency of the arguments for reassessment of the
upper limit due to inflation but he required that evidence be led to establish the
degree of erosion.’
II. The Implications of Lindal
A.
Components of the Award
In a nutshell, the above discussion represents the reclarified position of
the Supreme Court. How are we to work it out in practice? How should the
courts below render their awards and how are counsel to prove the damage to
support a substantial award? First, with regard to the award itself: although
the 1978 decisions 1 brought an end to the global award and ratified itemized
assessments, there is no logic to the itemizing of the intangible portion of a
damage claim since any award is a response to only one form of damage –
distress or grief. Nevertheless, from the perspective of counsel faced with the
“See Charles, The Supreme Court of Canada Handbook on Assessment of Damages in
Personal Injury Cases (1981) 18 C.C.L.T. 1, 14-5, where the author lists those jurisdictions
which have accepted the $100,000 guideline as British Columbia, Alberta, Manitoba and
Prince Edward Island.
“9These include Saskatchewan, Ontario, Newfoundland and New Brunswick. Ibid., 15.
2’Nova Scotia. Ibid.
2’Lindal, supra, note 5, 269-72.
SIbid., 275.
23Supra, note 2.
1982]
COMMENTS
onerous task of proving the appreciation of loss by his client 2 4 along with the
burden of substantiating the costs of substitutes and their possible uses by the
victim, it will be essential to utilize the traditional sub-heads of pain and
suffering, loss of amenities and loss of expectation of life. In order for counsel
to establish the basis of the plaintiff’s need for solace, it will be necessary to
determine the nature of the pain and suffering by evidence of its degree,
intensity and duration, past and future.25 Such proof will often be led together
with the facts of detention in a hospital and the attendant unpleasantness of
medical procedures such as anaesthesia.
Loss of or damage to limbs or faculties doubtless will be argued in terms
of the expenses incurred to replace the lost use and enjoyment. 26 We can
expect the continuation of the harrowing testimony relating to damage to the
central nervous system, to the digestive organs and functions of the bowel or
bladder, and to the respiratory system. Equally, where there is damage to the
sex organs 27 or to the reproductive system, we are likely to hear more of the
foreseeable consequences such as the intrusion upon the victim’s prospects
for a full relationship with another person or persons,’ whether formerly
enjoyed29 or merely anticipated.” It is not unlikely that we may see some
exaggeration by counsel, but this embellishment can be controlled if it is
borne in mind that we are concerned with the dislocation of the way of life of
the victim and not with the fact of the injury itself. As every lawyer should
know, many permanent injuries to the individual, such as loss of a spleen,
have little or no impact upon the way of life of the person.3′ On the other hand,
temporary or permanent disfigurement will continue to play an important part
in the assessment of damages under this head as will evidence of loss of a
sense, be it sight, smell, hearing, touch or taste. All of these types of injuries
can have an impact upon the individual’s capacity for work and upon his
enjoyment of leisure. As before, proving mental injury by the use of medical
‘See Gibson, Repairing the Law of Damages (1978) 8 Man. L.J. 637, 657-8, fn. 77 who
suggests the spurious discipline of “dolorimetrics”.
‘SeePhillips v. South WesternRailway Co. (1879)4 Q.B.D. 406,407-8perCockbum C.J.
‘This position is contrary to the older loss of assets argument which measured the profitable
and pleasurable use ofa limb. See H. West & Sons Ltdv. Shepherd, supra, note 9,355perLord
Devlin.
“SeeMeglio v. Kaufman LumberLtd (1977) 16 O.R. (2d) 678, (1977) 79 D.L.R. (3d) 104
(H.C.) [hereinafter cited to O.R.], where Cory J. suggests that “[s]uch an impairment could be
considered under the heading of ‘Loss of Amenities of Life’ or under the claim for general
damages”. See also discussion at 681.
2See Harris v. Harris [1973] 1 Lloyd’s Rep. 445 (C.A.).
“See Lampert v. Eastern National Omnibus Co. [1954] 2 All E.R. 719 (Q.B.).
“‘See Gray v. LaFleche (1949) 57 Man. R. 396, [1950) 1 D.L.R. 337 (K.B.).
IIJ. Clerk & W. Lindsell, Torts, 15th ed. (1982) 232, fn. 79.
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testimony, with restraint, 32 will continue to establish nervous shock, anxiety
neurosis and other personality disorders. Although traditionally the courts
have feared such claims on the grounds that they are difficult to assess, that
they can be evanescent and even spurious, and that they are the most subjec-
tive of injuries, today the acceptance of expert testimony has assured the
recognition of this type of loss. The proof of incapacity here is often revealed
in the inability or unwillingness of the victim to participate in recreational
pursuits and other normal incidents of living.3
Moreover, counsel will be asked to sustain arguments for substantial
damages for the loss of expectation of life. The law recognizes that every
person has a legal right not to have his life shortened by the tortious act of
another. 4 The loss is not the loss of a particular number of days, but rather the
denial of the chance to live a full life. Thus the relevant factors are the age of
the victim, his prospects prior to the accident and his possibilities in his
changed condition.
There are certain factors and policies which are irrelevant to the calcula-
tion of a non-pecuniary award. Mr Justice Dickson properly discarded the
policies of sympathy for the plaintiff and retribution against the defendant in
his judgment in Lindal. Other irrelevant factors include the defacto adjust-
ment or happiness of the specific victim; this has no place in the calculation
because the goal is to purchase substitutes for activities denied to the victim by
his injuries.35 Equally, social status and income level,36 or assets of the
plaintiff, have no place in the assessment because we are dealing objectively
with the individual’s requirement for substitutes, their costs and his capacity
312See Franco v. Woolfe (1975) 60.R. (2d) 227, (1975)52 D.L.R. (3d) 355 (H.C.), rev’din
part on other grounds (1976) 120.R. (2d)549, (1976)69D.L.R. (3d)501 (C.A.). In the Court
of Appeal, Houlden J.A. upheld the admissibility of medical testimony as to the psychological
consequences of the loss on the survivors. Houlden J.A. rejected, however, testimony by the
same medical witness relating to the character of the deceased based on tests conducted on the
survivors.
33See Cook v. J. L. Kier & Co. [1970] 2 All E.R. 513 (C.A.).
14See, e.g., Flint v. Lovell [1935] 1 K.B. 354, [1934] All E.R. Rep. 200 (C.A.); Rose v.
Ford [1937] A.C. 826, [1937] 3 All E.R: 359 (H.L.). See also, Braniff& Pratt, Tragedy in The
Supreme Court of Canada: New Developments in the Assessment of Damages for Personal
Injuries (1979) 37 U.T. Fac. L. Rev. 1, 31; H. McGregor, McGregor on Damages, 14th ed.
(1980) 41; J. Fleming, TheLaw of Torts, 5thed. (1977) 222; R. Heuston, Salmondon theLaw
of Torts, 17th ed. (1977) 577.
33See, e.g., Wise v. Kaye [1962] 1 Q.B. 638, [1962] 1 All E.R. 257 (C.A.); Povey v.
Governors of Rydal School [1970] 1 All E.R. 841 (Manchester Ass.); Holmes v. Board of
Hospital Trustees of the City of London (1977) 17 O.R. (2d) 626, (1977) 81 D.L.R. (3d) 67
(H.C.).
36These factors were raised inFletcher v. Autocar and Transporters Ltd [1968] 2 Q.B. 322,
359-60, [1968] 1 All E.R. 726 (C.A.) per Salmon L.J. See also the earlier Scottish decision in
Young v. Glasgow Tramway and Omnibus Co. (1882) 10 Sess. Cas. 242 (Ist Div.).
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CHRONIQUE DE JURISPRUDENCE
to utilize them. And last, the sex of the victim per se is not a relevant factor
although there are certain costs which derive from the fact of one’s sex which
may have a negligible influence on the award through the costs of substitutes.
Lindal has implications for our handling of the unaware plaintiff. Past
practice with regard to unconscious or unaware victims has been based on a
policy of ensuring that it is not cheaper to render a person comatose than it is to
ruin him physically. Yet this policy is quite illogical when it is proclaimed in
our highest court that it is not the function of a damage award in negligence to
punish the defendant. It is only possible to support an award to an unconscious
plaintiff if one believes that the intangible award is still coloured by its origins
as blood-money. We have not in the past given the unconscious party monies
for pain and suffering but we have given awards for loss of faculties, loss of
amenities and loss of expectation of life.37 As a consequence of the judgments
in Andrews, Teno, Thornton and Lindal it can be argued logically that no
award should be made since there is no distress felt and correspondingly no
need for solace nor its tangible substitutes. 38 This view has commended itself
to members of the British Pearson Commission, 39 to the judges of the High
Court of Australia I and would seem to be the logical next step for our
Supreme Court.
B.
Changed Economic Conditions and the $100,000 Limit
Although Mr Justice Dickson described his task in Lindal as an oppor-
tunity to continue the exposition of rational and cohesive principles for the
guidance of trial courts in personal injury cases,4 he did, at the same time, add
a further wrinkle. This additional complexity derives from his dicta which
would allow a court to breach the ceiling of $100,000, relying on an argument
of changed economic conditions and the erosion of money value. The learned
Justice concluded that inflation could not be argued in the instant case because
of the close proximity of the date of the trial judgment, 27 April 1978, to the
decisions of the Supreme Court of Canada in the trilogy, 19 January 1978.42
37The problem was examined in both the dissenting and majority opinions of the Alberta
Court of Appeal in Prather v. Hamel (1976) 66 D.L.R. (3d) 109.
3 Cooper-Stephenson & Saunders, supra, note 16, 378.
39Report of the Royal Commission on Civil Liability and Compensation for Personal Injury
(1978), Cmnd 7054, 91-2, paras 393-8. See also Veitch, The Pearson Report: Guidelines for
Canada? (1979) 28 U.N.B.L.J. 19.
‘Skelton v. Collins (1966) 115 C.L.R. 94 (Aust. H.C.). Some English judges have also
expressed support for this view. See Lord Justice Winn’s references to Skelton in Andrews v.
Freeborough [1967] 1 Q.B. 1, 12, 18 and 20 (C.A.). But see, in the House of Lords, Lim Poo
Choo v. Camden andIslingtonArea HealthAuthority [1980] A.C. 174, 188, [1979] 2 All E.R.
910 per Lord Scarman.
I’Lindal, supra, note 5, 265.
12Ibid., 275.
McGILL LAW JOURNAL
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1972; (b) the date of the trial judgment in that case –
Earlier, a majority of the British Columbia Court of Appeal had reached a
similar conclusion that the effective base-date for inflationary adjustment
arguments should be 19 January 1978. 43 However, Chief Justice Nemetz,
although concurring in the holding, suggested an alternate approach. He
identified three possible base-dates: (a) the date the cause of action arose in
Andrews –
1974; and
(c) the date of the judgments in Andrews, Teno and Thornton in the Supreme
Court –
1978. Finding no authority for the first date, he selected 1974 over
1978 4” despite arguments for the latter date founded on the assumption that
the Supreme Court was establishing a new policy thence forward rather than
writing the judgments of the three trial judges. 45 Chief Justice Nemetz was
persuaded that the 1974 base-date was appropriate in view of the plain
language of the British Columbia Court ofAppeal Act 4 which he found to be
“virtually identical” 47 to the federal Supreme Court Act.48 He also relied upon
a similar judicial pronouncement in Ontario. 49 The relevant sections of the
Supreme Court Act state:
47. The Court may dismiss an appeal or give the judgment and award process or other
proceedings that the court, whose decision is appealed against, should have given or
awarded.
53. The judgment of the Court in appeal shall be certified by the Registrar to the proper
officer of the court of original jurisdiction, who shall thereupon make all proper and
necessary entries thereof; and all subsequent proceedings may be taken thereupon as if the
judgment had been given or pronounced in the last mentioned court.A
The rule that appellate courts routinely write the judgments which should
have been given by the court below has always been taught to law students and
it has been the conventional wisdom of the Supreme Court since the early
years of this century.” It is important, however, to bear in mind the policy
implicit in s. 54(1) of the Supreme CourtAct which describes the Court as the
”exclusive ultimate appellate civil and criminal jurisdiction within and for
‘ 3Hatton v. Henderson (1981) 126 D.L.R. (3d) 50, (1981) 29 B.C.L.R. 316,319-20 (C.A.)
[hereinafter cited to D.L.R.].
“Ibid., 53 per Nemetz C.J.B.C.
“Ibid.
“R.S.B.C. 1979, c. 74.
“Supra, note 43, 54.
“R.S.C. 1970, c. S-19.
4″Fenn v. City of Peterborough (1979) 25 O.R. (2d) 399, 451-2, (1979) 104 D.L.R. (3d)
174 (C.A.).
“Supreme Court Act, R.S.C. 1970, c. S-19.
-“See, e.g., Boulevard Heights Ltd v. Veilleux (1915) 52 S.C.R. 185, (1915) 26 D.L.R.
333; Murray v. Delta Copper Co. [1926] S.C.R. 144, [1925] 4 D.L.R. 1061; K.V.P. Co. v.
McKie [1949] S.C.R. 698, [1949] 4 D.L.R. 497.
1982]
COMMENTS
Canada”.12 It may be that the $100,000 figure was a new rule based primarily
upon policy considerations which can only be considered by the Supreme
Court of Canada.53 We are therefore led to the thorny issue of the proper extent
of judicial lawmaking. One cannot escape the fact that the possibility of
adjusting the $100,000 ceiling as enunciated in Lindal appears as no more
than an after thought at the close of the judgment. It is to be hoped that
clarifying litigation will soon reach the Court.
Conclusion
The confirmation of the ceiling and the discussion of its suggested
manner of alteration still leave us with the question of whether the upper limit
is the measure of the worst case imaginable or whether it is to be regarded as a
conventional figure attainable by all claimants whose injuries are beyond the
modest. One can see from the cases since Andrews that many judges, includ-
ing the Justices of the Supreme Court of Canada in Lindal itself, measure
awards by comparison. This kind of comparative analysis suggests a calculus
in which quadriplegia equates with $100,000. Yet the underpinning of the
theory of measurement is the need for solace, the costs and possibilities of
obtaining substitutes and the victim’s capacity to enjoy them. It is therefore
illogical to equate the worst possible injury with the upper limit for reasons of
sympathy or the discarded notion of “lost assets”. Yet the judgments in both
Andrews and Lindal hint at confusion between theory and practice, while the
behaviour of trial judges reveals manifold divergences of approach.M It may
well be that the best-intentioned theorizing and logic-setting must give way to
the primitive or atavistic impulses which still appear to govern the assessment
of damages. Simply put, it may be difficult to purge the spirit of wergeld from
the judicial arteries. If so, it may be some time before we can teach the
acceptance of the rule in Lindal’s case.
-“Supreme Court Act, R.S.C. 1970, c. S-19, s. 54(1).
‘3 However,.it is interesting to note that our “sister” court, the High Court of Australia, takes
the very opposite position. As Mr Justice Stephen recently held: “It is not part of the judicial
function to depress the level of awards on policy grounds. The courts have no mandate to
entertain any such policy.” Barrell Insurance Pry Ltd v. Pennant Hills Restaurants Pty Ltd
(1981) 34 A.L.R. 162, 185 (H.C.).
-See, e.g., Laird v. Costain (1978) 24 N.B.R. (2d) 510 (N.B.S.C., Q.B.Div.); Savard v.
Richard (1979) 25 N.B.R. (2d) 45 (N.B.S.C., App.Div.); Godin v. Bourque (1980) 28
N.B.R. (2d) 643 (N.B.Q.B., T.D.).
