Tort damages limited to those caused by the tortfeasor

Rollin v. Baker, 2010 ONCA 569 reminds us that tort damages are limited to the harm caused by the tortfeasor and do not necessarily include all the harm suffered by the plaintiff.

Here a plaintiff broke her wrist and was given inadequate treatment. Her damages for medical malpractice were limited to the harm caused by the poor treatment and did not include the damages caused by the broken wrist.

The Court holds:

[82]          In assessing non-pecuniary damages at $90,000, Dr. Baker submits that the trial judge improperly awarded Ms. Rollin damages for all of the pain and suffering associated with her broken wrist rather than for that resulting from the delayed detection of the displacement during the healing process.

[83]          The trial judge's reasons contain only the following sentence with respect to non-pecuniary damages.  "After reviewing all of the evidence, it is my view that the appropriate amount under this head of damages would be $90,000."  While that single sentence does not explain the basis of the amount, the trial judge's unqualified review of how Ms. Rollin's injured wrist has affected her life, plus her identification, in para. 14 of her reasons, of one of the issues before her as "the damages that Carole Rollin sustained as a result of the Colles' fracture of her left wrist", strongly suggest that the trial judge did assess damages as though Dr. Baker was responsible for all of the injuries his patient suffered as a result of the fall.  Furthermore, as I will discuss below, $90,000 is several times the usual quantum awarded for non-pecuniary damages in the case of a defendant fixed with full responsibility for a broken wrist, however severe the after-affects.  Given the lack of reasons for assessing the damages at this amount and the strong suggestion of an error, this aspect of the judgment is not entitled to deference.

[84]          It is therefore up to this court, if the record is sufficient, to determine Ms. Rollin's general damages on the appropriate basis.

James Morton
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