## Facts

- Seventeen-year-old Stephanie Walker drove over a hill and collided with a tractor-trailer that was blocking the road while the driver, Donald J. Ritchie, attempted to back it into a driveway.
- Walker suffered catastrophic injuries, including brain damage, cognitive deficits, and left-side paralysis.
- Walker and family members sued Ritchie, his employer (Harold Marcus Limited), and their insurer for negligence; family members also sought derivative damages under Ontario’s Family Law Act.
- The trial judge found the defendants solely at fault and awarded Walker approximately $4,959,901 in damages, plus additional Family Law Act damages to family members.
- A major component of damages was future loss of earnings, based on findings that Walker would not attain competitive employment and likely would have completed a university degree.
- To quantify future income loss, the trial judge used gender-neutral university-graduate earnings data, applied a 10% contingency reduction to reflect possible non-university education, and deducted $100,000 for residual future work capacity.
- The trial court also awarded substantial costs (including a premium described as a risk premium) against the defendants.

## Issues

1. Whether the trial judge erred in projecting Walker’s education and career path and in using gender-neutral earnings data to calculate future income loss.
2. Whether the trial judge made reversible error in various other heads of damages, including awards for caregiving/childcare, rehabilitation-related items, benefit deductibility, and the discount rate.
3. Whether the trial judge erred in the costs award, including the amount of counsel fees and the award of a costs premium.

## Decision

- The Court of Appeal dismissed the appeal on damages and upheld the trial judgment’s methodology and the contested heads of damages.
- The Court of Appeal allowed the appeal in part on costs by reducing counsel fees.
- The Court of Appeal otherwise upheld the costs award, including the premium.

## Legal Principles

- Appellate courts generally defer to fact-driven assessments of damages in catastrophic injury cases absent palpable and overriding error.
- Future earning-capacity assessments may be based on individualized evidence of the plaintiff’s abilities, performance, motivation, and supports, including a finding that the plaintiff likely would have completed higher education.
- A trial judge may use gender-neutral earnings statistics where supported by the evidence and where historical gender-specific data would likely understate a young plaintiff’s realistic future earning potential; appropriate contingencies may be applied to address uncertainty.
- Under the then-applicable costs rules, a trial judge had broad discretion to fix costs, and the Court of Appeal treated a costs premium as permissible where grounded in the circumstances of the litigation and the costs factors applied at the time.

## Conclusion

The Ontario Court of Appeal affirmed a substantial catastrophic-injury damages award, including the trial judge’s use of gender-neutral earnings data and related contingencies to quantify future income loss, and upheld contested needs-based damage items; it reduced counsel fees on costs but otherwise sustained the costs award, including a premium.


Walker v. Ritchie, 197 O.A.C. 81 (Ont. C.A. 2005)