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Supreme Court denies leave to appeal in Ontario contributory negligence case


September 25, 2008   by Canadian Underwriter


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The Supreme Court of Canada has dismissed an appeal of the Ontario Court of Appeal decision in Debbie Rizzi v. George Mavros, in which the Ontario appellate court found a trial judge had erred in his jury instructions on the issue of contributory negligence.
The Supreme Court of Canada does not give reasons for denying leave to appeal applications. Essentially, the Supreme Court’s decision upholds the decision of the Ontario Court of Appeal in the case.
In Rizzi v. Mavros, the Ontario Court of Appeal found a trial judge had erred in a personal injury case when the judge had informed a jury as to the existence of a Cdn$300,000 cap on non-pecuniary damage awards, but did not explain the policy reasons for the cap.
In effect, the cap is to keep damage awards in check, the Ontario Court of Appeal affirmed. 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).
Rizzi developed fibromyalgia after she 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 leading to fibromyalgia.
The jury trial awarded Debbie Rizzi Cdn$236,494 in damages including Cdn$41,000 for general or non-pecuniary damages. But the Appeal Court found the judge had improperly given instructions to the jury on the cap and substituted a non-pecuniary damage award of Cdn$80,000.


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