Multi-million dollar award to child who suffered birth injury: Court examines compensation for “pain and suffering”

by John McKiggan

Child Claims Millions Due to Birth Injury

An Alberta court recently decided a case involving a child who was permanently injured during her birth. The case A.T.-B. v. Mah contained an interesting analysis of a variety of legal issues that typically arise in medical malpractice claims.

I thought the case was worth writing about because of the judge’s views regarding the plaintiff’s claim for compensation for “pain and suffering.”


The plaintiff (“A”) was born by caesarian section in 2001. She claimed the defendant, Dr. Mah, was negligent during the delivery process. During her birth, A’s supply of oxygen was reduced, causing her permanent and severe brain injuries. According to all of the experts that testified, A will require 24 hour care and supervision on a minute-by-minute basis for the rest of her life.

She claimed damages of $15,000,000 for her loss of earning capacity, loss of the economic advantages of marriage, past and future cost of care, the expenses to manage her remaining life activities and damages for pain, suffering, and the loss of enjoyment of life.

What is pain worth in Canada?

What I found interesting was the Court’s assessment of the non-pecuniary damages (pain, suffering, and loss of enjoyment of life).

Canada has a “cap” on the amount of money injured plaintiffs are entitled to receive for pain and suffering. The rule comes from a 1978 case, Andrews v. Grand & Toy where the Supreme Court of Canada set the “cap” for the “worst case scenario” plaintiffs at $100,000.00.

This amount has been adjusted for inflation since then and now sits at approximately $328,000 in Nova Scotia (it is slightly different in each province since the cost of living in each province is different).

This amount is a stark contrast to the millions frequently awarded in the U.S.A. in states that do not have a cap on non-pecuniary damages.

Worst Case

The Plaintiff in A.T.-B. v. Mah sought to recover the maximum amount for non-pecuniary damages. The Defendant doctor argued that the child was not hurt badly enough to get the maximum award. Justice Graesser of the Alberta Court of Queens Bench recognized the problem with the “worst case scenario” situation and stated:

[543] In personal injury cases, looking for the worst harm in the worst circumstances to the most vulnerable victim is an unfortunate and hopeless analysis. Is it worse to be blind or deaf? Quadriplegic or without much cognitive functioning? Is it worse to be conscious of your loss, or oblivious to it? These arguments are more philosophical thought experiments than legal analysis, and therefore are a poor foundation on which to base useful jurisprudence. A key purpose of the law is to provide predictable results. Trying to rank different but terribly deleterious outcomes is too imprecise a basis for the calculation of damages.

Imprecise calculations?

Graesser J. interestingly compared the cap on damages in personal injury cases to the larger awards granted in defamation cases. Surely the pain and suffering of quadriplegics should warrant higher amounts than the damage to a reputation?

One case, Young v. Bella [2006], involved a graduate student who had her reputation severely damaged by a professor. The Supreme Court of Canada upheld a jury award of $430,000 in non-pecuniary damages. The SCC declines to consider whether the cap from Grand & Toy v. Teno should apply to non-pecuniary damage awards outside of the personal injury context.

Additionally, in Hill v. Church of Scientology the SCC decided a libel case between a Crown lawyer and the church. The SCC confirmed the total jury award of $1.6 million, including a $300,000.00 award for non-pecuniary damages.

Courts have also been willing to reject the cap in sexual abuse cases. In S.Y. v. F.G.C. the British Columbia Court of Appeal awarded non-pecuniary damages of $250,000. In making this decision the Court stated that the “cap” was not applicable to cases of intentional torts of a quasi-criminal nature.

Flawed reasoning?

So what are the reasons for capping non-pecuniary damages for personal injury cases?

In Teno v. Arnold and Andrews v. Grand & Toy the Supreme Court of Canada gave 4 reasons why they felt it necessary to cap damage claims:

1. The claim of a severely injured person for damages for non-pecuniary loss is virtually limitless. The fact that there is no objective yardstick for measuring such loss leaves this area open to inconsistent and widely extravagant awards. The concern I have with this point is that it ignores that fact that judges render their decisions after considering precedents established in other cases, so this fact alone should rein in “wildly extravagant” awards.”

2. Damages for non-pecuniary losses are not really “compensatory” as no money can provide true restitution. Accordingly, such damages should be viewed as simply providing additional money to make life more endurable. I refer to this as the: “No amount of money can change what happened, so why should we try?” argument. In fact, I get that argument from defence counsel a lot in sexual abuse cases.

3. Under the law, the plaintiff will be fully compensated for future loss of income and future care costs. I call this the: “We’re paying your bills, what more do you want?” argument.

4. Exorbitant awards for general damages can lead to an excessive social burden (i.e. unaffordable increases in insurance and social costs). But there was no evidence provided on this issue at the original trial or at the court of appeal. It was raised for the first time by the Supreme Court of Canada and appears to have formed one of the foundations of their decision. On this issue the Court in Teno v. Arnold said (at page 333):

The very real and serious social burden of these exorbitant awards has been illustrated graphically in the United States in cases concerning medical malpractice. We have a right to fear a situation where none but the wealthy could own or drive automobiles because none but the wealthy could afford to pay the enormous insurance premiums which would be required by insurers to meet such exorbitant awards

The flaw in this reasoning is that Canada and the United States have very different systems when it comes to defending medical malpractice claims. In Canada, there is a Canadian Medical Protection Association which is responsible for defending most (95%) medical malpractice claims. I touched on the role that the CMPA plays in reducing the number of medical malpractice lawsuits in Canada in a previous article.

I don’t believe the comparison between Canada and the USA is relevant. Additionally, no evidence was provided about what effect, if any, not having a cap would have on auto insurance premiums.

This is the same argument that auto-insurers make in every province when they want caps on compensation inured auto accident victims. But close examination of the facts always shows that damage awards have almost nothing to do with increasing (or decreasing) auto insurance premiums.

In Andrews v. Grand & Toy Justice Dickson said (at page 265):

I would adopt as the appropriate award in the case of a young adult quadriplegic like Andrews the amount of $100,000. Save in exceptional circumstances, this should be regarded as an upper limit of non-pecuniary loss in cases of this nature. [Emphasis added]

The statement “save in exceptional circumstances” logically means there should be exceptions to the rule. The problem is that in the 35 years since the SCC trilogy not a single claim has succeeded in establishing “exceptional circumstances” sufficient to beat the SCC’s cap.

So the Court’s statement has ultimately been treated as a cap on the compensation that every single injured Canadian is entitled to receive for their injuries. In ter Neuzen v. Korn, Justice Sopinka went so far as to say that the $100,000 cap that the Supreme Court of Canada imposed as a “rule of law” was a legal limit for non-pecuniary damages in personal injury cases.

So much for exceptional circumstances.

Applying the cap to A.T.-B.

In assessing the pain and suffering of the plaintiff, the Court was presented with a number of cases involving plaintiffs who were similarly injured. The Plaintiff’s lawyers submitted cases involving plaintiffs who would have been similarly or less injured yet received the maximum award, while the Defendant’s lawyers submitted cases involving plaintiffs who were similarly of more injured yet did not receive the maximum award. With respect to this approach the Court stated:

[564] I do not intend in this decision to go through all of the cases submitted to me, distinguish or explain them, illustrate why A. is worse off than all of the other plaintiffs who received lesser awards, and why A. is entitled to the maximum available award. Suffice it to say that there are cases which obviously attract the maximum award by virtue of their injuries and the effect of their injuries, notwithstanding that there may be others who characterize someone else’s injuries as worse.

Ultimately the Court awards the maximum amount permitted under the Grand & Toy cap, adjusted for inflation.

I have to say that despite the fact that the court upheld what is (in my view) an unfair cap on compensation for non-pecuniary damages, Justice Graesser did exercise some common sense in the application of the rule. The approach eliminates the “worst case” argument and may make it easier for seriously injured victims to receive the maximum amount of compensation allowed under the Supreme Court of Canada cap.

Want More Information?

If you or a loved one have suffered injuries that you think may be due to medical malpractice you can buy a copy of my book: Health Scare – The Consumer’s Guide to Medical Malpractice Claims in Canada: Why 98% of Canadian Medical Malpractice Victims Never Receive a Penny in Compensation on

The revised edition of the book contains a new chapter on the link between medical malpractice and birth injuries, and cerebral palsy claims caused by hypoxia and ischemia.

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