Landmark Canadian Cases that Shaped Personal Injury Law

February 23, 2023 from Bogoroch & Associates


Common law, as opposed to statutes or laws created by the legislature, is the body of law in Canada that is developed through judicial decisions and precedents. Based on the Latin phrase “to stand by things decided,” this body of law mandates that lower courts uphold rulings made by higher courts in situations that are comparable to their own.


In common law, a personal injury case becomes significant when it establishes a precedent for similar situations in the future. Because they affect how courts understand the law and how it will apply to similarly factual future situations, this is why the facts of a case are so crucial.


Donoghue v Stevenson, 1932 UKHL 100

Donoghue, also known as the “snail in the bottle case,” included a plaintiff who drank ginger beer and found a dead snail at the bottom of the bottle. Does the Plaintiff have a case against the maker, the British House of Lords deliberated?


A snail in a bottle was not adequate proof of a defendant’s harming the plaintiff prior to Donoghue. However, the House of Lords ruled in Donoghue that people must exercise reasonable caution to avoid doing anything that could fairly be expected to harm their neighbours.


Plaintiffs must demonstrate that a duty of care was owed to them as a result of Donoghue. The court will now inquire as to if the plaintiff’s relationship with the defendant was sufficiently close and at foreseeable risk to signify a legal relationship. Numerous obligations of care have previously been established, including those between a doctor and a patient, two drivers using the same road, and initially, a ginger beer producer and their customer.


Andrews v Grand Toy & Alberta Ltd., 1978 SCR 229

Damages in civil law in Canada can be divided into two categories:

  1.  Pecuniary damages and
  2. Non-pecuniary damages.


Pecuniary damages, the first category, are quantifiable and include things like lost wages or housekeeping costs. Non-pecuniary damages, commonly known as “general damages” or “pain and suffering,” are sums of money awarded as recompense for bodily and psychological harm.


J.A. Andrews became a quadriplegic in a car accident when he was 21 years old. The Court granted him $100,000 while also setting this amount as a new cap, noting that it was difficult to imagine someone losing more in an accident. The current cap on damages for pain and suffering is $420,000.00 (as of January 2023, adjusted for inflation).

While the compensation granted to their American counterparts may appear excessive to those experiencing excruciating pain and suffering, Andrews has had an impact on how damages are determined in every serious personal injury case in the following years.


Snell v Farrell, 1990 SCR 311

After a plaintiff has established that a defendant violated a relevant standard of care, they must demonstrate how the violation led to their injuries. In medical malpractice cases, when the pain a plaintiff experiences is frequently tied to their initial illness rather than the doctor’s carelessness, this stage of a personal injury claim is notoriously difficult.


A plaintiff in Snell experienced vision loss in her eye following cataract surgery. It was obvious that the doctor made mistakes, and the court had to decide whether or not such negligence led to the patient’s loss of vision. Even though there was no way to definitively identify the cause using science, the Court adopted a strong and practical stance and inferred causation based on what they did know.


Because of the Snell case, a plaintiff may receive compensation even if there is no proof that their doctor’s carelessness caused their injuries.


Waldick v Malcolm, 1991 SCR 456

The Supreme Court of Canada considered an appeal involving a slip and fall on a private driveway in Waldick v Malcolm. The defendant claimed that the parties resided in a town where it was customary for residents to refrain from sanding or salting their icy driveways.


Two problems existed. Was a duty of care breached given the defendant’s disregard for this ‘standard practice’ and refusal to fix the icy driveway? The Court determined that it would be illogical to leave one’s driveway untreated in such hazardous conditions, even if it were the norm. Therefore, just because something is conventional does not make it fair.


The second problem asked is the plaintiff’s knowledge of the driveway’s state was an acceptance of the risk. Regarding this matter, the Court decided that merely being aware of a risk does not suffice; Waldick did not cause his injuries just because he was aware that there was some ice on the driveway. Because of Waldick, Canadian courts are reluctant to hold plaintiffs accountable for their missteps merely because they were aware of some danger.


Mustapha v Culligan, 2008 SCC 27

In Canadian law, mental damages are becoming increasingly significant. Courts have established some restrictions even as they continue to value making up for the psychological trauma that can ensue from physical injuries.


The plaintiff in this case observed dead flies in the unopened coolers of drinking water they had bought from the defendant in Mustapha. He developed depression as a result, drastically altering both his emotional condition and way of life. The Supreme Court determined that for mental damages to be compensable, they must be foreseeable that they could occur in a person of ordinary fortitude, which precluded the Plaintiff from recovering. The trial judge had viewed this response as predictable.


Accordingly, a plaintiff must establish all relevant aspects of negligence in order to succeed in their case, but mental injuries may not be covered by insurance if the response was not consistent with what might be anticipated of a person of reasonable fortitude.





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