"So many dreams at first seem impossible. And then they seem improbable. And then when we summon the will, they soon become inevitable."
~ Christopher Reeve

Tuesday, September 21, 2010

Injury Damages, Human Rights and Disability - A Guest Post

For Americans, a case just heard in New York state [Ed. This reference is now almost one year old - my sincere apologies to Mr. Mitchell  for the delay in getting this up] is raising questions about how far human rights questions can intervene in the calculation of damage awards ... and influence the outcome. It is interesting to see how this case tests against Canadian authority, how the idea is treated, here, and how the ideas it raises could affect the treatment of persons with disabilities north of the border.

McMillan v. New York is a race-discrimination based decision but its implications extend far beyond mere questions of race. It involves, directly, how legal equality assurances should affect how damages awards
are calculated for injured people.

The cases’s background is this: You might remember a terrible accident a few years ago when a New York ferry slammed into its dock at high speed killing several people and badly injuring others.

One of the persons injured was an employee who was left paralyzed in his legs and in part of his arms and unable to work. He therefore suffered not only the actual loss of the use of his arms and legs but also a
direct elimination of his ability to continue to earn income from his employment. And, in such cases, with a sufficiently young claimant, the loss of projected income over a working lifetime can be a very large amount indeed.

This Claimant, McMillan, is African-American. And this is where the case becomes interesting. The fact is that, as a group, African-Americans have a shorter statistical life span – and therefore a shorter statistical working life span – than other groups in society.

McMillan sued for damages including his inability to carry on working and the loss of wages it would mean over the balance of his working life.

The calculation of this kind of loss is a standard exercise in Canadian and American law. It involves trying to decide how much a loss of income the man could be expected to suffer over each year and how long he might be expected to be able to work.

Perhaps you’re seeing the argument coming: Because, African-Americans have shorter life spans, on average, than other groups in American society and the factor immediately became an issue in calculating the loss that he suffered. Clearly, a person with a shorter lifespan (and therefore a small chance of working full time to retirement age), will expect to earn less than others with a longer projected life as a result of the same inability to work. And just as clearly, his damages will be less if because of his accident, he can no longer work.

New York City’s lawyers brought this argument – not rocket science by the way, but a usual and customary part of damages law – directly into play. They argued that because the McMillan’s lifespan was statistically less than, say, a Caucasian working the same job, in effect, he should be entitled to less damages than his Caucasian counterpart.

In the result, of course, the City expected to save a very significant amount of money. The trial judge refused to allow the city to make this distinction. He awarded damages based on overall life expectations and refused to limit it to those governing African Americans. The first argument that he used was that “race” is such an undefined and fluid category that statistics based on the distinction is much less precise than the category might at first appear – and so it would be unfair to judge people’s claims based on unclear data. The second argument was that as a result of better care and treatment because of the funds available from the damages award, the claimant’s expected life span might actually expand.

But lastly, and this is where it bears consideration here, McMillan decided that because the US constitution protects everyone equally under law, that a distinction allowing the law to differentiate between claimants based on race-based characteristics actually violated that constitutional protection.

You can see, for the Americans, damages calculations based on disability will also have an effect. In the same way that as the court found that how statistics link lifespan to “race,” at best, only in the fuzziest of ways linkages of lifespan to disability will, in the same way, be only the vaguest and most remote connection, if helpful at all.

How could this affect us here?

Canadian cases arguing racial distinctions cases are fewer and farther between than in the US. However, there are broad suggestions from now decade old or older cases, that courts have attributed lower earnings potential or life span to native claimants in BC damages claims. While a struggle has been being waged to limit unfairness – and corrections are taking place – in applying old statistical information to the projected earnings levels of women to reduce their damages claims as compared to similarly claiming men, the issue has not been resolved.

But no one seems to be studying the claims of persons with disabilities. And equally, no one seems to be considering applying the constitutional protections of equality.

The courts here have reminded us that the Charter’s s. 15 including equality considerations can be available in our country to affect this area of law (case based “common law”) decisions as well as any
government regulation or practice. But as of yet, it seems, the issue has yet to be directly confronted in the country’s law reports.

Perhaps the perhaps innate unfairness of categorizing people for legal purposes based on any grounds of inequality deserves close review in Canadian cases. Perhaps it’s a place where our governments need to intervene.

A Guest Post by Mr. Blair Mitchell, a Halifax lawyer who has practiced in the area of civil and administrative litigation for over 20 years and whom, you might recall, has graced our pages previously.

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