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Developing Damages

July 25, 2013  |  By:  James L. Vigmond

Evolution…
The development of damages is the most interesting and exciting part of any plaintiff’s case. One does not start developing the claim when the file is open; rather, it evolves partway through a lawsuit and becomes further refined as trial draws nearer. Once the plaintiff’s injuries are discerned and the extent of any residual impairment is established, the focus of one’s effort is damage development

Theory and Perception
Perception is everything. Everything must be looked at through the eyes of the jury when you are preparing the case for trial. A trial is in every sense of the word a presentation in that it contains a story with a beginning and end. It is something the jury can see, hear and feel — more akin to Les Mis or The Phantom than reading a book.

Every piece of evidence has to be tied to the theory of the case. Thus, it is important that you establish a theory of the case prior to developing the damages. The theory and damage development will then work hand-in-hand. It does evolve only after the plaintiff will have received sufficient amounts of assessment and treatment for you to know the extent of the impact of the injuries upon your client.

Once you have captured the picture of the plaintiff in your own mind, concentrate on how you can develop that photograph for the benefit of the jury. Consider what evidence you should use, obtain or indeed create. That evidence, once obtained, will be useful from the beginning of your trial in your opening address through the trial to your closing. The theory of the case and the development of damages will of course dictate the type of evidence to be led at trial.

Pre-Accident v. Post-Accident Condition
The development of damages requires consideration not only of your client’s post-accident condition but also his or her pre-accident history. Too often, plaintiff’s counsel place too much emphasis on the establishment of the medical condition from which the plaintiff suffers as a result of injuries sustained in the accident. It is of no consequence to the result if the plaintiff establishes that he or she is not likely to earn any income after the accident if there is no cogent evidence that pre-accident the plaintiff would have been expected to earn income.

The emphasis has to be on the change in the plaintiff by reason of the intervening event. Place the two pictures you have of the plaintiff — one pre-accident and one post-accident — side-by-side so that the jury can see the enormous impact the accident has had.

Highlight that change at the beginning of your presentation (in your opening address) by talking, for example, in two verb tenses. Use the past tense for the pre-accident history and the present tense for the post-accident condition. For example, consider the following. “Jane Doe had the world by the tail. She had a job, a career. She was in good health. She had a great future. That was until June 3, 1989. Picture Jane that day. She is on her way to work. It is a bright, sunny day. She is taking her usual route to work.”. The jury can see early on the contrast. You are warning them that something significant is about to happen. The change in verb tense to the present is portentous. You now have started the jury thinking, albeit subconsciously, that the plaintiff’s life is about to change forever.

You will often have difficulty in determining who might have relevant evidence in presenting the pre-accident history to the jury. Depending on the nature of the case, you will want to consider calling immediate family members to give evidence on the personality profile of the plaintiff and their observations of their level of activity. In the event you wish to lead evidence as to the plaintiff’s stated career aspirations before the accident, ensure that the plaintiff will have testified that he or she did discuss these plans with others so that the
defendant is not able to object to your introduction of the evidence through collateral witnesses.

Further, unless their evidence is critical for some reason (it usually is not), I suggest that you use the family member witness evidence as “filler” evidence part way through the trial. It is obviously biased evidence and will be discounted by the jury. Keep the evidence short and to the point.

Objective witnesses will be more important. Consider calling former employers who can testify as to the plaintiff’s dedication and work ethic. This will be particularly persuasive if the pre-accident employer has had no involvement with the plaintiff since he or she left their employ.

Consider awards or items of recognition that the plaintiff might have received that would be indicative of someone with a commitment to a working future or a particular career.

It is important to develop damages for both general and pecuniary damages.

Non-Pecuniary General Damages
Evidence will be led with respect to both medical and non-medical issues.

Non-Medical Issues
By the time of trial, you will have assessed the plaintiff and will have formed a view as to how he or she will present as a witness. If the plaintiff will make a strong witness and will withstand the rigors of cross-examination, emphasize his or her evidence in your opening. Remind the jury that they must listen to the plaintiff and that aside from all the doctors, it is he or she who suffered and continues to suffer the impairment and who really knows of the pain and frustration. Tell the jury early on that they should award substantial damages.

In the event the plaintiff is an unknown factor or is expected to be weak, soften the jury before the evidence is led and tell them what to expect. If the plaintiff has difficulty in expressing himself or herself, or is not expected to freely volunteer any information, let the jury know in your opening. Inoculate the jury against your weaknesses. Defence counsel will rarely fail to attack your weaknesses. The best defence is a pre-emptive strike. So if your client is an alcoholic or failed to declare income on his or her income tax returns or was convicted of assault in the past, you will want to ask him or her about that in your examination-in-chief. It need not detract from your ability to present a sympathetic plaintiff. After all, the plaintiff is not someone you created for the role of a lawsuit. He or she will have their imperfections as will the jury. Be candid and forthright.

The use of demonstrative evidence is critical in a presentation of evidence in respect of damages — both pecuniary and non-pecuniary. A picture is worth a thousand words. If the photographs of the vehicle are particularly morbid, have them enlarged. Introduce photographs on consent or have the plaintiff or a photographer identify the accurate presentation of what is being depicted.

The Ministry of Transportation has aerial photographs of virtually every intersection in the province. Even though liability may not be in issue, bring the scene of the accident into the jury’s living room. Start with a city map and move to an aerial photograph showing the particular intersection and perhaps move to a ground shot. The more you can bring home the reality of the situation that the plaintiff faced and that the plaintiff faces to the jury, the better off you will be. After all, you are not presenting the jury with a theoretical case of what would happen to Jane Doe if she were injured. You want them to see where she was hurt.

Use demonstrative evidence early and often — from the opening address to the first witness and every witness thereafter. Repetition is pivotal to persuasion. Demonstrative evidence is pivotal to persuasion. The repetitive use of demonstrative evidence will have a synergistic effect and will significantly increase your chances of success.

Medical Evidence
It goes without saying that medical evidence is critical to the development of damages for personal injuries. You will not always have had the opportunity to pick your own experts. The experts will already have been retained prior to your involvement. For example, the plaintiff will have a family doctor. In addition, he or she will have been assessed by other consultants, either retained by the insurer providing weekly indemnity or rehabilitation benefits or by their family physician.

Take advantage of the fact that the family doctor may have referred the plaintiff for consultation. You can impress upon the jury that the family doctor thought that the plaintiff’s injuries were severe enough that he or she felt it necessary to seek outside expertise. In that event, you cannot be accused of doctor shopping.

A supportive family doctor is a key to any successful plaintiff’s personal injury action. It is important to have a family doctor onside early and to obtain regular reports. The plaintiff with a chronic pain problem who continues to see the same family doctor as pre-accident, will come across better to a jury if that family doctor is supportive and can clearly express that the plaintiff today is not the same person that he or she was before the accident. After all, the family doctor will have seen the accident victim on dozens, if not hundreds of occasions. You can then say to the jury in your summation: “After all, who would you believe, the plaintiff’s family doctor who saw Mrs. X 15 times before the accident and 162 times after the accident or the defendant’s doctor who saw the plaintiff once? Who is in a better position to assess the veracity of the plaintiff? Who knows the plaintiff better and is better able to judge whether or not the plaintiff’s presentation was exaggerated, contrived or legitimate?” Just because the plaintiff or the defendant has retained experts such as physiatrists or orthopaedic surgeons who might be better trained to assess the extent of the plaintiff’s alleged disability, does not disentitle you from asking the plaintiff’s family doctor for his or her opinion.

The following is a summary of some of the uses to be made of the family doctor’s testimony:

  1. minimize the extent of any pre-morbid physical or psychological disorders if any are contained in the records (for example, the physician can say that while the doctor did have three entries in his records for low back pain before the accident, there were no such complaints in the three years preceding the accident and he or she did not consider that there was any residual complaint or impairment relevant to the plaintiff’s post-accident condition);
  2. maximize the extent and duration of the post-accident symptoms;
  3. have the physician express his or her belief in the truthfulness of the plaintiff;
  4. have him or her express that the plaintiff is not exaggerating or magnifying their symptoms;
  5. establish that the accident is the proximal cause of his or her injuries and subsequent impairment;
  6. emphasize any positive physical findings relevant to the impairment;
  7. establish that there are no pre-morbid conditions unrelated to the accident that would affect the plaintiff’s life expectancy or working-life expectancy;
  8. establish the various treatment regimes recommended by the family physician;
  9. have him or her re-iterate the opinions of other consultants to whom he or she referred the plaintiff.This will allow you repetition of a favourable opinion. (For example, I referred Ms. Jane Doe to Dr. X and he concurred with my own views that the plaintiff had chronic pain syndrome and was not expected to improve);
  10. use the doctor to introduce the treatment chart or medication charts that you will have secured (which will be discussed below);
  11. have the doctor identify the future care costs which the plaintiff has required and will reasonably require into the future. (For example, if the plaintiff will require analgesic or anti-inflammatory medication, massage therapy, physiotherapy, chiropractic treatments, housekeeping, canes, home modifications, psychological counselling … have the doctor identify them as being reasonably required in future and that allowance ought to be made for such items in the action;
  12. review the clinical notes and records entry by entry. Often times, family doctors will not write down a series of complaints if they are unchanging over time. If that is the case, establish that the pain complaint to a particular part of the anatomy is governed by a generic reference (for example, “chronic pain”).

When Should I Retain an Expert?
Typically in a motor vehicle accident, an injured plaintiff will have seen a family practitioner and will have been assigned a rehabilitation consultant by their own insurer. Unless the injuries are obvious and sometimes even then, the defendant will have secured a defence medical examination.

It is imperative that you obtain a complete copy of all medical and treatment documentation in the insurer’s file prior to engaging an experts. The plaintiff is absolutely entitled to a copy of every report from any medical practitioner. There is no sense in spending money where the “system” may have developed medical documentation which you will require. A review of the insurer’s file will identify where the nature of the dispute if any exists. You will then be better prepared to retain someone with the expertise which would be best suited to impugning any adverse report.

What Type of Expert do I Need?
Often times in personal injury matters, plaintiff’s counsel make the mistake of immediately referring the plaintiff to an orthopaedic surgeon. Generally speaking, I do not send anyone to an orthopaedic surgeon unless they have, what I refer to as purely an orthopaedic injury — that is a fracture or dislocation of some kind. On balance, orthopaedic surgeons down play soft tissue and chronic pain complaints. Most orthopaedic surgeons will say that the soft tissues will have healed within six to twelve months and that any continuing complaint of pain or impairment is as a result of underlying psychological problems. In those cases, consider the use of a rheumatologist, physiatrist and psychologist or psychiatrist. Convince the rehabilitation company to request that the insurer pay for the cost associated with the consultation as something that is reasonably required for the person’s rehabilitation. It is a matter of judgment and continual assessment of your file that determines when an expert will be required and what discipline would best be suited to assessing the injuries. Experienced rehabilitation consultants are particularly useful at identifying problems which plaintiffs have that have either been unidentified or untreated by family doctors. They recommend various resources available for treatment for these people and are helpful in highlighting difficulties plaintiffs encounter in activities of daily living.

Rehabilitation consultants are not always well-qualified — often times having, for example, Bachelor of Arts degrees. It is preferable to engage a rehabilitation consultant who is a physiotherapist or occupational therapist who will have some background and training in the assessment of a person’s physical capabilities and how their impairment may translate into a vocational impairment.

A rehabilitation consultant will be helpful in leading evidence with respect to a wide variety of matters. As with the family doctor, they can testify as to their perception of the plaintiff’s veracity. They can indicate that they have met with the family doctor and are satisfied that there are no pre-accident physical or psychological difficulties which are contributing to the post-accident impairment. They will be very useful in identifying future care needs and costs. They can express their opinion on earning impairment. Central to the rehabilitation consultant’s responsibilities, is the identification of the nature and extent of the impairment and how and by what means the counsellor is recommending the plaintiff be rehabilitated to a productive role in the workplace. A good rehabilitation consultant will identify the vocational impairment from which the plaintiff suffers by reason of the physical or psychological impairment. Thus, the consultant will be particularly useful in the identification and presentation of the claim for future care costs and loss of employability.

You may have an opportunity to have input into the selection of a rehabilitation consultant, depending on when you will have been retained by the plaintiff. Caselaw which has developed under the Ontario Insurance Commission establishes the right of an insured to a direct say in the selection of a rehabilitation consultant. Thus, if one has not yet been appointed, request someone that you have confidence in. If someone has already been appointed but you can establish some legitimate dissatisfaction with his or her services, you may request a change from the insurer. You will want someone, of course, sympathetic to the plaintiff’s position.

It will be important that you have the person assessed by a psychologist or psychiatrist as the defendant will almost certainly have the defendant seen by such a specialist who will undoubtedly express the opinion that the pain is psychosomatic and unrelated to the accident.

Finally with respect to treatment, it is helpful to have as witnesses those who have taken an active role in the care of the plaintiff such as chiropractors, physiotherapists or those conducting functional abilities evaluations. These people can say that the plaintiff actually does have muscle spasm or objectively measured restriction in ranges of movement. They can identify objective physical signs of impairment.

It is important that you “show” the jury the problems the plaintiff has encountered. Use demonstrative aids repetitively. Consider the following demonstrative aids:

  1. a model spine which can be manipulated by each of your medical witnesses re-enforcing and repeating the physical nature of your client’s injuries;
  2. visual diagrams of medical illustrators showing for example a herniated disc or anterior disc displacement in the jaw or showing the pin through the talus reuniting the fractures;
  3. use treatment charts showing the dates and numbers of visits to each health care practitioner for the same number of years pre-accident as post-accident;
  4. use medication charts showing medication ingested both pre-accident and post-accident;
  5. consider the use of an employment chart showing time spent at jobs before and after the accident;
  6. consider the use of activity charts showing the types of activities in which the plaintiff was engaged pre-accident and post-accident;
  7. consider a flip chart summarizing the evidence of some of the witnesses with respect to, for example, forms of recommended treatment;
  8. use overhead charts showing forms of treatment prescribed or undertaken or recommended. You can put anything on an overhead from a quote in a doctor’s report to a quote from the transcript of the defendant’s examination for discovery to a photograph of the vehicle involved in the collision;
  9. consider showing the jury assistive devices the plaintiff uses (such as head rolls, magic bags, gel ice, cervical collar, obus form, relaxation tapes, tens machine, etc.).

It is imperative that you bring the life of the plaintiff to the jury. It is one thing to have the plaintiff describe that he or she uses a heating pad or her husband applies gel to her shoulders or she listens to the tapes to relax. It is another matter when you put the picture in front of the jury for them to see. Remember, juries remember more of what they see than what they hear and much more of what they see and hear than what they hear alone. Let the jury touch, feel and examine each of the aids. Tell them that while they are looking at this particular device for the first time, the plaintiff has to use it every day of his or her life. You are now developing a three dimensional picture for the jury.

You will be able to use all of these aids in the course of the trial by asking various doctors if they think this particular assistive device would be helpful in how the plaintiff deals with her pain.

Be inventive.
In one case, I attempted to introduce a jar full of 21,000 jelly beans which matched the number of tablets of medication my client had ingested since the accident. The evidence was excluded as being unduly prejudicial. Had I used smaller jelly beans that reflected the size of the pills, I might have been successful.

In another case, I was permitted to introduce video tape evidence of my client undergoing approximately 15 to 20 injections of two-to-three inch long needles in various portions of his head. This included above and below his eyes, in his temples and in his nostrils. The effect of the evidence was overwhelming in establishing a physical basis for his complaints of neck pain and headaches. After all, how could any person endure such a horrific procedure only for secondary gain.

Pecuniary Loss
This is usually the more challenging of the two components to the development of damages. The ultimate goal is to convert the existence of a physical or psychological impairment into an income loss, particularly where only a partial disability is alleged or established.

Again, the key is to be creative.
Circumstances may dictate the development of alternative scenarios so that the trier of fact does not have to accept or reject the only option you put forward. The jury may agree, for example, that the plaintiff could not return to his or her former job, but if the only option presented to them is an all or nothing approach, the plaintiff may end up on the wrong side of the fence.

There are, broadly speaking, two types of approaches used in establishing an income loss.

One approach is what I call a “straight-line approach”. The second is a general damage or “ballpark” approach. I will discuss these separately.

Straight Line Approach
The theory is to establish what income the plaintiff would have earned before the accident and have the trier of fact deduct a specific amount for the plaintiff’s post-accident earning capacity. Thus, take the example of Jane Doe who worked as a plumber earning $35.00 per hour before the accident. Unable to continue in her plumbing capacity, she has established a new career as an engineering technician earning $20.00 per hour. The loss of income is thus $15.00 per hour x 40 hours per week x 52 weeks per year to age 65.

There will be appropriate deductions for contingencies. Contingencies are either positive or negative. Positive contingencies are those factors which tend to increase the damage award. For example, if it is likely that the plaintiff’s earnings would have increased beyond the rate of inflation by reason of advancement or education or the plaintiff’s stated intention to work past age 65, the plaintiff’s damage award will be greater than as expressed. Negative contingencies would decrease the income for such factors as premature retirement from the workforce by illness or matters unrelated to the accident, early death, etc. Consider what elements you or the defendant will concentrate on as it affects the claim for loss of income and ensure that appropriate evidence is led. For example, it is an oft cited statistic that over 50 percent of women have retired from the labour force by age 50. If an expert has prepared a report relying on this statistic, you will know that evidence must be led as to why your client does not fall within the majority. Although it is self-serving and seems contrived, you must lead evidence through the plaintiff as to when she expected to retire. Is there evidence that a career was important to the plaintiff. Distance the plaintiff from being just a statistic.

The “straight-line approach” is suggested where the plaintiff has already re-established a reasonable alternative career and has thus established a specific stream of income. As well, it is suggested where what is proposed as a future endeavour is realistic and is seen as a reasonable mitigation of the plaintiff’s loss. One has to have defined with some precision the job in which the plaintiff has or would re-establish himself or herself and what a reasonable income level would be.
Evidence as to the quantification of the financial loss is best led from an actuary or an economist who could give a present day value of the loss of future earnings with the appropriate discounts. Alternatively, a chartered accountant with experience in forensic accounting may be permitted to lead this type of evidence.

General Damage Approach or Ballpark Approach (Loss of Competitive Advantage)
The more common approach, in my experience, is that of a loss of competitive advantage or a general damage approach to loss of future income.

Again, there are generally speaking, two methods of presentation of a loss of competitive advantage claim. The cases use different approaches. One manner of dealing with loss of future income loss is to award the plaintiff an award representing an annual amount of income lost to expected retirement date (for example, $10,000.00 a year to age 65).

The other approach is simply the “ballpark justice approach”. That awards a lump sum without specific regard to an actuarialized annual income loss.

The loss of competitive advantage theory assumes that a person with a physical or psychological impairment is compromised in his or her ability to secure a job. A person with physical restrictions can do fewer jobs than he or she could do pre-accident. More significantly, he or she can do fewer job functions than persons with similar education and skill levels but who do not suffer similar physical impairments. Thus, the plaintiff is now compromised in his ability to compete for these jobs. Thus, they are less likely to secure jobs than they would before the accident — even more so than people having few if any skills.

To take a specific example, assume John Doe was a bricklayer’s assistant. He had been in the past a carpenter’s helper and drywaller. He suffers a shoulder injury and has permanent physical restrictions. He is able to perform only sedentary, unskilled tasks but is disabled from doing the only type of job which he has done in the past.

Given his track record, he is certainly able to do less tasks than he could do before the accident and there will be less jobs available for him. It is thus reasonable to argue that as there are less jobs for him, he will earn less income than if he had more marketable skills. One can then request that the jury compensate the plaintiff by providing him with the present day value of a loss of income of either $5,000.00, $10,000.00 or $20,000.00 annually. Alternatively, one can say that it is difficult to establish what the exact amount of the loss will be but one would ballpark it by requesting $50,000.00.

Of the two approaches, I prefer the present day value of an annualized income loss. It generally produces higher figures. Cases that have awarded “ballpark” figures without any expression of an annualized income loss typically are lower — below $50,000.00.

Burden of Proof
It is important to understand that one need not establish that the plaintiff will lose income in future on a balance of probabilities. In Schrump v. Koot (1977), 18 O.R. (2d) 337, the Court of Appeal held that a plaintiff can satisfy the burden of proof of establishing a loss of future income by showing upon expert or cogent evidence that there is a “substantial possibility” that the event may occur. Thus, if one can establish through the evidence of medical doctors, economists, labour market experts, employers, etc. that there is a substantial possibility the plaintiff will earn less income post-accident, the plaintiff will have satisfied the onus resting upon him or her and is entitled to an award of damages.

Evidence
The type of evidence to be led will depend upon which approach is tendered by you at trial.

A “straight-line” theory will be more “numbers-driven”, dominated by the evidence of an actuary. A loss of competitive advantage theory requires a multi-faceted approach. It will be important to lead evidence from rehabilitation consultants, vocational experts, economists, statisticians, labour market experts, employers, etc.

Rehabilitation consultants are important witnesses. They can attest to the fact that the plaintiff exerted maximal effort in realizing his post-accident potential but that he or she is left with a number of restrictions which impact on his or her vocational potential. Rehabilitation consultants can provide an opinion that the labour market is difficult enough today in which to find a job when healthy; opportunities are severely restricted for those that suffer even marginal impairments.
There are more statistics in dealing with labour market analysis than I care to acknowledge. A good economist will be able to access statistics which will be relevant to the loss of competitive advantage analysis. Statistics indicate that persons suffering physical impairment have a higher rate of unemployment and are more likely to find part-time as opposed to full-time work at reduced levels of income.

Consider the use of a vocational assessment.
The quality of vocational assessments varies significantly from assessor to assessor. It is critical that you obtain a CV from the proposed vocational expert and that you discuss his or her reputation with your colleagues prior to engaging them. Not only will you want a vocational assessment that is supportive of your position; you will want to ensure that the assessor will withstand the scrutiny of cross-examination and that you will have no difficulty in qualifying the witness as an expert.

It is helpful to have an assessment which identifies your client’s aptitudes as being inconsistent with their measured physical abilities post-accident. That will serve to highlight the very paradox the plaintiff faces in the real world. The bricklayer wants to do bricklaying but is no longer able to do so. You can identify that he or she does not possess the intellectual capacity or have an interest in virtually any other occupation. The assessment will usually highlight the incongruity of the plaintiff’s measured physical ability with their interests which will serve to highlight the loss of competitive advantage claim.

Vocational assessments will often times conclude that the plaintiff will be relegated to a role of part-time or full-time minimum wage type employment of a sedentary nature with little or no opportunity for advancement. (Evidence as to the plaintiff’s pre-accident capacity and ambitions will of course come from a different source.

The defence will usually have a vocational assessment of sorts. They often manufacture a computerized listing of jobs which your client can do. Typically, they will point to your client, regardless of the degree of impairment, being able to be an optical lens grinding technician or a racehorse bet taker! Taken to extremes, there would never be a plaintiff who was not employable in some capacity. Urge the Court to be practical.

Be inventive. Consider the use of non-expert evidence as well as expert evidence with respect to income loss. For example, in a recent case involving a plumber, I had on hand information from the City of Barrie evidencing the fact that it was one of the fastest growing communities in Canada and was expected to be so for the next 10 years. My client was an entrepreneur and had shortly before the accident become involved in a business venture that was very profitable installing water softeners. The more the population grew, the more houses that would be built, the more water softeners my client could install — the more income he stood to lose. I established as well that the franchise that he had the exclusive installation contract with had the second highest sales volume in all of Canada for this franchise. The information I was seeking to build, of course, was that the plaintiff only saw continued growth in the field in which he was earning his income. Again, think of the theory of your case and what statistics you might find available to you to support that theory.

Conclusion
The three cardinal rules to remember in the development of damages are the following:

  1. Establish a theory of the case.
  2. Use demonstrative evidence.
  3. Be inventive and flexible.

About the Author

James L. Vigmond

Jim Vigmond was called to the Bar in 1983, and is a graduate of the University of Western Ontario and Queen’s University Law School. At Oatley Vigmond, Jim leads a team of lawyers and support staff...

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