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Ontario court upholds record Cdn$13.9-million future care costs award in auto brain injury case


April 22, 2009   by Canadian Underwriter


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The Court of Appeal for Ontario has upheld a jury award in an automobile brain injury case of roughly Cdn$17 million — including a record Cdn$13.9 million for future cost of care.
In Marcoccia v. Ford Credit Canada Ltd., Ford Credit appealed a number of aspects of the jury award, describing the future care costs portion of the award as “perverse and wholly unreasonable.”
“This amounts represented approximately 96% of the maximum amount claimed by the respondent,” the court observed in its decision. “The appellant [Ford Credit] submits this amount is ‘perverse and wholly unreasonable’ and greatly exceeds any known award for future care costs in a brain damage or personal injury case in Canada, including cases that involve full paraplegic plaintiffs.”
But the court disagreed, noting that counsel for Marcoccia submitted a range of between Cdn$9-14 million for the award, whereas counsel representing Ford Credit said “a lower award in the range of Cdn$11 million would have been reasonable, albeit at the upper range of the range of reasonableness.”
“In our view, the jury’s assessment of damages in this case was not ‘plainly unjust and unreasonable,'” the court found.
Ford Credit further argued the judge’s instructions to the jury on future care costs did not sufficiently clarify what is meant by “reasonableness,” although the court found otherwise, saying it was enough for the judge to tell the jury that the award had to be “fair to all parties.”
The case arose out of a straightforward intersection collision in Toronto.
A truck making a left in an intersection (owned by Ford Credit) was hit by an oncoming vehicle driven by Frank Marcoccia, whose vehicle drove straight through an amber light that was turning red.
Marcoccia was found to be 39% at fault for the collision. He suffered serious injuries to the frontal and temporal lobes of his brain.
As a result, he suffers from diminished executive functioning and enduring psychological, behavioural and emotional impairments that impede his ability to lead a normal life or find future employment.