July 27, 2012 – A jury award of more than $100,000 to each of two young children for the loss of their mother in a crash may have been high but was still reasonable, Ontario’s top court has ruled.
The ruling could pave the way for substantively higher awards in future to compensate children for the loss of a parent, one of the lawyers involved said Thursday.
“This is the first case to recognize the non-economic loss of a parent is at least as significant as the non-economic loss of a child,” said family lawyer Adam Little.
“Previously, the court had only given awards in that range to parents who lost a child.”
The case involved the death of Michelle Vokes, 30, who died from injuries suffered when her minivan was demolished by a car driven by Randy Palmer six years ago in Owen Sound, Ont.
Evidence was that Palmer was driving as fast as 120 kilometres an hour in a 50 zone when he slammed into Vokes, who was nine months pregnant, as she drove out of a shopping plaza following a visit to her midwife. The unborn child did not survive.
Court heard that Palmer, who had no insurance, had suffered a significant brain injury years earlier that affected his judgment, and had also lost the use of one arm due to injury and drove one handed.
In 2005, a neurologist stated he was “too demented” to drive but his licence was reinstated anyway six months before the crash.
When asked why he didn’t let Vokes’s vehicle proceed in front of him and avoid the crash, Palmer testified: “I had the right of way.”
After a two-week trial in June last year, the jury found Palmer entirely at fault, and awarded $117,000 to her daughter Madison, who was five at the time of the crash, and $135,000 to Abigail, who was three years old, for the loss of care, guidance and companionship. Her husband Bradley Vokes was awarded $90,000.
Palmer and ING Insurance�the family’s insurance company because Palmer had none�appealed unsuccessfully on the grounds the awards were “gross and excessive.” They also argued Vokes herself was somehow at fault for the crash.
The Appeal Court rejected all their arguments.
“Although the amounts awarded are high, in our view, they are not so inordinately high in all the circumstances of this case as to meet the threshold for appellate intervention,” the court said in written reasons released this week.
Palmer was later convicted for driving without insurance.