A mother, Ms. Rodrigues, was driving her car through an intersection when another driver entered against the red light and violently crashed into the family vehicle. The car accident resulted in serious injuries to the mother and minor physical injuries to two of her sons and tragically, her third and youngest child sustained a fatal brain injury. He was only five months old when he died.
The surviving family members, including the father of the deceased child, brought a lawsuit against the at fault driver. The negligent driver admitted liability in the accident but the civil action proceeded to trial to determine the proper amount of damages. In Rodrigues v. Purtill (2018), the family sought non-pecuniary damages under the Family Law Act due to the wrongful death of the youngest boy. The mother and her two children also sought damages for their injuries.
Meeting the injury threshold for non-pecuniary damages
Non-pecuniary damages are compensation for losses that cannot be measured in financial terms, such as pain and suffering, or the loss of guidance, care and companionship that a person could reasonably have expected to receive if their loved one had not been injured or killed in the accident.
As defined in Ontario’s Insurance Act, s. 267.5, any person who is seeking non-pecuniary damages arising from an automobile accident must establish that they sustained a “permanent, serious impairment of an important physical, mental, or psychological function” or a “permanent serious disfigurement”. Essentially, an injury must meet the threshold of being serious, permanent and impacting an important bodily function, in order to be eligible for non-pecuniary damages caused by a car accident. If the injury meets the threshold and non-pecuniary damages are awarded, there are applicable deductibles which may reduce the amount awarded.
In the current case, the Court found that the threshold for non-pecuniary damages was met for all of the plaintiffs, in terms of the seriousness and permanence of their injuries. Years after the accident, the surviving sons continued to suffer from emotional and psychological problems, including unspecified anxiety disorder and PTSD, resulting from the loss of their brother as well as the physical, emotional and psychological impacts the accident had on their mother.
Understandably, both parents suffered significant psychological and emotional impacts from the loss of their son. The accident also affected their spousal relationship. And, after the accident, the father became the sole provider and had to take on a larger portion of housekeeping functions due to the permanent injuries sustained by his wife. Because the trial judge awarded substantial non-pecuniary damages to both parents to reflect their devastating loss, these damages were not subject to a statutory deductible.
Ms. Rodrigues attended the defendant driver’s criminal trial, and the trial added further distress for the family. And, the stress was prolonged because the defendant appealed her six-year sentence and plead ‘not guilty’. However, a jury ultimately found her guilty on the charges of criminal negligence causing death and bodily harm, and impaired driving causing death and bodily harm.
The car accident’s effect on the life of Ms. Rodrigues
Ms. Rodrigues’s life has been significantly impacted by the accident, in terms of both physical and psychological injuries. Some of her physical injuries subsided in the first year after the collision, including neck pain, leg pain and headaches. However, the accident caused a lower back injury which has permanent and serious consequences. X-rays revealed that Ms. Rodrigues had sustained transverse process fractures in the L2 and L3 vertebrae of her lumbar spine, which caused ongoing pain that radiated into her left hip.
Two doctors, including an orthopaedic surgeon, assessed the plaintiff and gave evidence in the trial. Both agreed that the fractures in the plaintiff’s spine had healed; however, the force from the injury to her lumbar spine caused further injury to soft tissue, muscles or ligaments in her low back. And, these effects have resulted in a ‘mechanical lower back injury’ which is the source of the plaintiff’s constant, dull and nagging back pain. The injury and chronic pain cause difficult sleeping, reduced mobility (as it’s now difficult to bend down and straighten up), weakness (as she is unable to lift more than 20 pounds) and an inability to sit or stand for a prolonged period.
Ms. Rodrigues walks with a limp and is no longer able to perform many household chores, such as laundry, and can also no longer participate in many activities, such as biking, which she previously enjoyed. The plaintiff is also no longer able to work as a veterinary assistant, since she cannot perform the bending and lifting required in this role. During the trial, physicians gave evidence that Ms. Rodrigues is able to perform a sedentary job; however, she is expected to have a shortened work life, which is relevant to a determination of impairment.
The plaintiff was also assessed by two psychiatrists, one each for the defence and plaintiff, and both noted that she was honest, not highly emotional and did not exaggerate her symptoms. The defendant’s psychiatrist found that Ms. Rodrigues continues to suffer from a longstanding grief that is natural given the loss of her son, but he did not believe that she suffered from a psychological condition.
The plaintiff’s psychiatrist, Dr. Lanius, used a trauma-based approach to diagnose the emotional consequences of the car accident and her child’s death, beyond a surface presentation. And, based on his observations and assessments using accepted diagnostic criteria, Dr. Lanius diagnosed the plaintiff with three conditions: persistent depressive disorder, major depressive disorder and post-traumatic stress disorder. Dr. Lanius noted that the plaintiff was reluctant to reveal her feelings about the traumatic events surrounding the car accident and had, in fact, been coping by avoiding symptoms and inner pain by keeping them below the surface, which is typical for persons suffering from PTSD. She also suffered from feelings of guilt, shame and low self-esteem. On cross-examination, the defence’s psychiatrist admitted that Dr. Lanius’s findings pertaining to the plaintiff’s mental state suggest that the plaintiff is likely not able to work beyond a part-time basis.
Ms. Rodrigues’ relationship with her children and husband were also affected by her psychological and physical challenges. She is unable to give her boys the same amount and quality of time and interactions, and there has been a decline in intimacy in her marriage.
Dr. Lanius gave the opinion that every aspect of the plaintiff’s life was seriously and permanently impaired as a result of the accident, including domestic and day-to-day functions, her marriage and employment. The judge noted that the orthopaedic and psychiatric consequences for the plaintiff were cumulative. He concluded that Ms. Rodrigues had established that she sustained a permanent serious impairment of both an important psychological and physical function.
The judge assessed the following damages for the plaintiffs:
- $145,000 non-pecuniary damages for physical and emotional pain and suffering
- $70,000 past income loss
- $238,500 future income loss
- $130,000 loss of care and companionship due to the loss of her son, as per the Family Law Act
- $25,000 loss of guidance, care and companionship due Ms. Rodrigues’ injury (subject to a $18,991.67 deductible)
- $130,000 loss of care and companionship due to the loss of his son
The two surviving sons (each)
- $65,000 pain and suffering (subject to $37,983.33 deductible)
- $35,000 loss of companionship due to the loss of their brother (subject to $18,991.67 deductible)
- $30,000 loss of guidance, care and companionship due to Ms. Rodrigues’ injury (subject to $18,991.67 deductible)