Award Pursuant to Family Law Act Too High - Fiddler v Challenger Motor Freight

November 12, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Frederick J. Fiddler, Debbie A. Fiddler and Ashley Fiddler v. Christian l. Chiavetti, Martin Tobler and Challenger Motor Freight Inc 2010 ONCA 210 (CanLII)

Date of Decision: March 19, 2010
Heard Before: Goudge, Cronk and LaForme JJ.A.

COURT OF APPEAL FOR ONTARIO

FAMILY LAW ACT: what is the value of the loss of guidance and companionship; is the award of $200k too high; the award exceeds the reasonable established limits

On appeal from the judgment of Justice L.M. Walters of the Superior Court of Justice, sitting with a jury, dated February 20, 2009.

At trial, the jury awarded each of the respondent’s damages pursuant to s. 61 of the Family Law Act, R.S.O. 1990, c. F.3 after the death of Amanda Fiddler in an automobile accident.  The appellants contend that certain jury instructions were inadequate and that the damages awarded were excessive.

BACKGROUND

Amanda Fiddler was killed when a transport truck she was riding in struck another transport truck on January 16, 2005.  She was not wearing a seatbelt and her body was thrown from the truck, decapitated and dismembered.  The respondents Frederick Fiddler and Debbie Fiddler are Amanda Fiddler’s parents.  The respondent Ashley Fiddler is her sister.

At trial, the appellants admitted fault subject to the defence of contributory negligence.  The jury awarded:

• Debbie Fiddler past wage loss, $22,000; future wage loss, $6,000 per year for 12 years; and damages for loss of care, guidance and companionship, $200,000;
• Fred Fiddler loss of care, guidance and companionship, $50,000; and,
• Ashley Fiddler loss of care, guidance and companionship, $25,000.

After the jury verdict, the trial judge awarded Debbie $297,385.31, Frederick $37,982.60, and Ashley $10,852.17.  She also awarded $1,457.96 for funeral expenses.  The difference between the jury’s awards and that of the trial judge arises out of deductions for payments already made and accrued interest.  These amounts were calculated and agreed to by counsel for the parties.

Background of the appeal

Counsel for the respondents made statements to the jury which the appellants object to as being inflammatory and designed to appeal to the jury’s emotions.  Counsel made reference to some of the injuries sustained by Amanda, and the fact that soft tissue was found down the side of the truck.  The trial judge refused to provide correcting instructions.

The trial judge found that her instructions were sufficient.  Specifically, she held that she had turned the jury’s attention to the relevant issues and made clear that compensation was to be awarded only for the losses suffered by the plaintiffs as a result of the accident.

ISSUES

The appellants submit that there were effectively three errors in this trial.  The first two are errors by the trial judge:

• she failed to provide a proper correcting instruction to the jury or order a new trial due to inflammatory opening and closing comments by trial counsel for the respondents;
• she allowed the jury to consider a loss of income claim. 
• the jury awards for care, guidance and companionship are grossly excessive.

The Court of Appeal would allow the appeal on quantum in part and dismiss the remaining grounds. 

The $200,000 amount of damages awarded to Debbie Fiddler for care, guidance and companionship is grossly excessive and attracts appellate intervention.  Regarding the balance of the appeal there are no errors that would justify a new trial or that result in a substantial wrong or miscarriage of justice.

ANALYSIS

On appeal – and presumably with the same arguments made at trial – the appellants contend that the opening by plaintiffs’ counsel was improper in that it was inflammatory and designed to appeal to the jury’s emotions.  They say that the trial judge did not provide a correcting instruction to the jury, as requested by the appellants.  Beyond the reminder the trial judge did give, no such correcting instruction was necessary.

Read in context, the statements clearly demonstrate that counsel was merely setting out, as she was entitled to do, anticipated evidence that would contradict a finding of contributory negligence.  She correctly surmised that defence counsel would lead evidence of contributory negligence, arguing that Amanda had contributed to her own death by not wearing a seatbelt.  To counter this argument, counsel for the plaintiffs led evidence to demonstrate that Amanda died before being ejected from the vehicle.  If proven, this would make the question of whether Amanda was wearing a seatbelt irrelevant.  In making this argument, counsel was not inviting the jury to decide the case based on emotion.  Any emotional effect was a function of the unfortunate facts in this case and not the manner in which counsel addressed the jury.

This trial was about a collision that caused Amanda Fiddler’s body to be dismembered and violently destroyed.  What happened to her body during the collision was horrific and an effort was made to limit the details that the jury would hear.  At the same time, some of this evidence was necessary because it was crucial to address the issue of contributory negligence. The trial judge properly exercised her discretion to control the opening addresses.  She addressed counsel’s concern before any evidence was called, and the instruction given was clear and thorough.  In all the circumstances, this was an appropriate response to remedy any prejudice that may have arisen from the opening statement.  I would dismiss this ground of appeal.

Purpose of compensatory damages

In addition, respondents’ trial counsel is alleged to have misrepresented the purpose of compensatory damages in the following passage: You and you alone have the power to give Debbie, Fred and Ashley Fiddler the treatment and access to treatment that you determine they require.  You and you alone have the power to decide what wage loss Debbie Fiddler, Amanda’s mother has suffered…Finally, you and you alone will determine an amount in dollars for the loss Debbie, Fred and Ashley have suffered.

The appellants contend that these statements were improper because they invited the jury to award damages to the plaintiffs for their pain and suffering instead of compensating for the losses they had incurred.

The Justices disagree. Counsel was, as a strategic matter, anticipating the obvious question in the jurors’ minds: Why did her clients choose to self-medicate with alcohol and drugs instead of attending treatment and thus mitigating their damages?  This was a live issue at trial because of the defence strategy of minimizing the damages suffered by emphasizing Debbie and Fred Fiddlers’ drug and alcohol abuse.

Appropriateness of amount of damages

The “cap” established in Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229 for non-pecuniary general damages in personal injury cases does not apply to damages for loss of guidance, care and companionship: To v. Toronto Board of Education (2001), 2001 CanLII 11304 (ON CA), 55 O.R. (3d) 641 (C.A.), at paras. 28-30. Given the absence of a national guideline, the appropriate amount of such damage awards must be based on a range derived from an examination of like claims in like circumstances.  That is, as Osborne A.C.J.O. expressed it in To, at para. 30:

[E]ach case will be given separate consideration to measure what Krever J. viewed as “immeasurable” and “incalculable” in Gervais, supra, at p. 201.  Judges and juries are left to do the best they can in each case where the assessment of damages for guidance, care and companionship is required.

At the same time, in the absence of an error in the charge, “the jury's assessment must be so inordinately high (or low) as to constitute a wholly erroneous estimate of the guidance, care and companionship loss”:  To, at para. 31.  Each case must be considered in light of the evidence and circumstances and in light of the particular family relationships involved in that case: see To, at para. 31.  An appellate court will not interfere merely because it would have come to a different conclusion.

In To, the assessment of $100,000 for each of the parents of the deceased was viewed as being at the high end of an accepted range for guidance, care and companionship damages.  That was in 2001 and the Justice accepts that as the high-end amount.  Thus, even with the deferential standard in mind, it is the view that the $200,000 awarded to Debbie Fiddler, some 8 years later, is outside the range and warrants appellate intervention.  

It is clear that the jury was moved to award each of the respondents an amount that is at the mid to high end of the range, and the Court does not wish to interfere or take issue with the jury’s verdict in this respect.  Consequently, only the $200,000 amount awarded to Debbie Fiddler is in question.  An award that is effectively two times that of the high end of the permissible range is grossly excessive and out of all proportion to what is permitted having regard to the evidence that was presented at trial.  Indeed, there was no evidence that would take this case out of the general range of guidance, care and companionship damages that have been awarded in cases involving the death of someone in circumstances similar to those of Amanda Fiddler. 

Appellate intervention, therefore, is appropriate.

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