Jessica Teresa Toneguzzo-Norvell suffered severe disabilities due to oxygen deprivation during her birth. Savein, the respondent physician, and Burnaby Hospital admitted liability for her injuries and the only issue before the trial judge was the assessment of damages. The trial judge assessed the differing expert opinions and concluded that the best estimate of the appellant's life expectancy was 25 years. He awarded $1,981,879 in damages, including $292,758 for future income loss. The Court of Appeal reduced the award, concluding that the trial judge had overestimated the appellant's life expectancy by seven years and had failed to make a deduction for personal living expenses from the portion of the award relating to future income loss for the years after her death. Both courts had calculated the lost earnings at a higher rate than the female earnings chart to adjust for a perceived trend toward more equal wages.
- Can a male earnings chart be used to calculate future lost wages for a female plaintiff?
Appeal allowed in part.
The judges of the lower courts both gave Jessica lost earnings that were higher than the average female levels, however not as high as male levels. The court rejected this and said that they were not in a position to entertain the idea that precedence should not be followed and that something other than female earning charts should be used for reference.
The courts can only award damages based on evidence before them and cannot actively try to resolve societal inequities in damages.