Date: Tue, 7 Nov 2006 16:34:17

From: Allan Beever

Subject: Punitive damages for negligence

Thanks for this Vaughan,

This seems to me to be a very interesting case, and may cause criminal and charter lawyers to become interested in this issue. Something that I think has been lacking.

The reason for this is that (if I have read the case rightly) the Court ruled that punitive damages were appropriate in this case because the defendant was driving drunk. The reason that they knew that he was driving drunk was because the driver was subjected to a breathalyser test. However, as the majority noted at para 11:

The prosecution [in a previous criminal case against this defendant] made this decision [not to prosecute for drunk driving] because before the breathalyser test was administered, Andrew Grigg had not been informed of his right to counsel.

At para 140, Blair dissenting on the issue of punitive damages, says:

Other alcohol-related charges were withdrawn by the Crown, apparently because the police had omitted to advise Mr. Grigg of his right to counsel at the time of the accident, thereby, rendering inadmissible the breathalyser test results that would have demonstrated a high level of legal impairment on his part. The jury here, however, had the breathalyser results in evidence, as well as much expert and other testimony concerning Mr. Grigg’s impaired condition.

But he doesn't reach what I would have thought was the obvious conclusion: that there is something problematic about punishing the defendant in these circumstances whether it occurs in criminal law, tort, or whatever.

Has there been discussion of these issues in Canada? i.e. whether, given that punitive damages are punitive, charter rights etc are or ought to be relevant here as they are in criminal law, or at least similar to the way that they are in criminal law? I would be grateful to be pointed in the right direction.

Cheers
Allan

Vaughan Black wrote:

I see that the Ontario Court of Appeal has just approved a punitive damages award in a negligence case -- a rare occurrence in Canada -- though they trimmed the amount from what had been awarded at trial.

Dr Allan Beever
Reader in Law
Department of Law
50 North Bailey
Durham
DH1 3ET
United Kingdom
FAX : +44 191 334 2801
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http://www.dur.ac.uk/a.d.beever/

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