No Proof of Damages, No Judgment

No Proof of Damages, No Judgment

Absent damages, there is no judgment in negligence even if liability is found.

This point, which is pretty basic, was made in today’s decision in Davidson v. Lee, Roche and Kelly, 2008 ONCA 373.

From the very beginning of a negligence file counsel ought to focus on what harm was done by the wrongful act and how can that harm be proven.

Davidson provides:

[5]               The solicitor’s negligence resulted in the appellant and his wife completing a transaction, the sale of their taxi business, that they would have avoided had the solicitor told them that they would not receive more than $4600 in interest payments under the agreement and note. The respondent was responsible for compensating the appellant and his wife for the loss they suffered as a result of completing the sale transaction. But the appellant did not prove that he had suffered a loss. Without the solicitor’s negligence there would not have been a sale.

[6]               The appellant did not call any evidence to establish that the business, at the time of its sale, was worth more than the amount the appellant received from the purchaser. In the result, the record is barren of any evidence that the solicitor’s negligence caused any loss to the appellant. Proof of damages is an essential element in any claim for negligence. Nespolon v. Alford  (1998), 40 O.R. (3d) 355 ( C.A. ) leave to appeal refused [1999] 1 S.C.R. xi.

 

 

James Morton

Steinberg Morton Hope & Israel

1100-5255 Yonge Street

Toronto, Ontario

M2N 6P4

 

416 225 2777

 

Blog:  http://jmortonmusings.blogspot.com/