29 Dec Adding Punitive Damages To Your Personal Injury Claim

In the case of Howell v. Machi, 2017 BCSC 1806, the Plaintiff was injured in a hit-and-run accident.  She suffered serious injuries in the accident, including a skull fracture and a complicated mild traumatic brain injury.  This resulted in chronic pain, cognitive issues and an aggravation of certain pre-existing conditions.

At the commencement of the trial, the Plaintiff sought leave from the Court to amend her Notice of Civil Claim to include punitive damages.  Punitive damages are limited to misconduct which markedly departs from decent behaviour and they are only awarded in exceptional circumstances. Punitive damages are not compensatory, but intended to address retribution, deterrence and denunciation.

The Plaintiff sought punitive damages because at the time of the accident, the Defendant had been prohibited from driving for 12 months.  He had been prohibited from driving five times prior to that and had three convictions for Driving While Prohibited.  In addition, the Defendant illegally and negligently pulled out and accelerated into the oncoming lanes to get around the stopped traffic before straddling a traffic lane and a painted yellow traffic island. He then struck the Plaintiff and fled the scene without stopping to render aid or determine her condition.

There is very little dispute about the principles to be applied on an application to amend pleadings. The decision to permit an amendment is discretionary, but that discretion must be exercised judicially considering a number of factors. In this case, despite the delay no new facts were necessary to be pled or proven to support a claim for punitive damages. No new disclosure, discovery, or expert evidence was required to support the amended claim. In addition, the course of the trial would not have changed if the amendment had been sought in advance of trial. The Judge concluded that the amendment caused no prejudice to the Defendant and she exercised her discretion to permit the Plaintiff to amend her claim to seek punitive damages.

The Judge concluded that the Defendant’s actions were worthy of denunciation and retribution beyond the compensatory awards she had made in favour of the Plaintiff. In particular, although the Judge concluded that the Defendant’s failure to stop after striking the Plaintiff did not amount to further negligence on his part, it is relevant to the punitive damages analysis. The Judge also took into account the fact the Defendant has repeatedly shown complete disregard for the suspensions of his driver’s licence.

The Judge awarded the Plaintiff punitive damages of $100,000 against the Defendant.  Unlike the other heads of damage awarded to the Plaintiff in this case, the punitive damage award was not reduced due to any contributory negligence on her part because it was awarded as a result of conduct for which the Defendant was solely responsible.