Jury instructions on general damage awards must include reasons for cap on damages

A trial judge erred in a personal injury case when he informed a jury as to the existence of a $300,000 cap on non-pecuniary damage awards, but did not explain the policy reasons for the cap, the Ontario Court of Appeal has ruled.

The jury awarded Debbie Rizzi $236,494 in damages — including $41,000 for general or non-pecuniary damages — after she was injured trying to store paint supplies in a locker provided to her by her apartment building owners.

Rizzi had attempted to move large, heavy metal sheets on her own that were in the way of her storage locker, where she was trying to store paint cans. The metal sheets tipped over and fell on her, causing neuropathic pain in her legs that ultimately developed into fibromyalgia.

Rizzi argued the trial judge improperly instructed the jury on how to assess non-pecuniary damage awards. The Appeal Court agreed and substituted a non-pecuniary damage award of $80,000.

At trial, Ontario Superior Court Justice David Little told the jury: “The maximum awards in Canada for a young person who is made quadriplegic for pain and suffering is just less than $300,000. So your range would be somewhere between zero and $300,000 for her pain on that item only. That is the maximum. You would have to scale it.”

The Appeal Court said the trial judge erred by not including the policy reasons for the cap. In effect, the cap is to keep damage awards in check; it is not intended to invite trial jury members to believe certain forms of pain are intrinsically more or less valuable than others (i. e. in this case, quadriplegia should not be the standard against which a fibromyalgia damage award should be “scaled” or measured).