Criminal Law

Quantum of damages at issue in civil suit against Muzzo

By AdvocateDaily.com Staff

In seeking to reduce the amount of the civil lawsuit against Marco Muzzo in the drunk-driving deaths of three children and their grandfather, the civil defence is taking issue with the amount of punitive damages being sought, not over whether Muzzo is liable, Toronto criminal lawyer Joseph Neuberger tells Talk Radio AM 640.

As AM 640 reports, in September 2015, Muzzo drove drunk and killed four members of the Neville-Lake family — three children and their grandfather. He later pleaded guilty and was sentenced to 10 years in prison.

Via a civil lawsuit, the Neville-Lake family is now seeking $25 million in damages, however Muzzo is reportedly seeking to lower that amount.

“The only issue is — what we say in the business — the ‘quantum of damages’ or how much money the family’s entitled to. So, they’re about $15 million apart. And the statement of defence simply says that because he was punished criminally, punitive and what they call exemplary damages are not necessary. And that is not an argument that I think will succeed. These are just opening positions from both sides,” explains Neuberger, partner with Neuberger & Partners LLP, who is not involved in the case and comments generally.

In terms of the damages usually at issue in this type of case, Neuberger tells listeners that ‘general damages’ would involve a claim of quantifiable damages based upon the loss of family members — loss of income, companionship, or out-of-pocket expenses for therapy, for example.

However, he adds: “What is in issue here is something you call punitive or exemplary damages which is, in simple terms, because the allegation is gross negligence, reckless or malicious, that the family is entitled to punitive damages which punishes the defendant because of their conduct and how heinous this actually is in civil both and in criminal. So that is the basis of those damages, and those are the damages which are in issue.

“And I think really what will come to the fore once they start negotiating is, a careful mediator or a judge on the case will say ‘look — regardless of whether Mr. Muzzo plead guilty and got 10 years in jail, that does not completely satisfy, in civil law, the punitive and exemplary damages, because those can be claimed irrespective of him pleading guilty and going to jail.' It’s simply what would be the proper entitlement.”

Although Neuberger says the Muzzo family’s reported wealth of almost $1.8-billion may be ‘subconsciously’ taken into consideration in this case, it really shouldn’t be a factor.

“This should be based upon numbers and what the case law is and what the calculations are. But what I would hope to see is that the two sides come together through meaningful negotiation, because it would be very traumatic for the Neville family to have to go through any sort of discoveries or to have to go through a trial process to try and obtain those damages, and nor would it be in their best interests to do that. So what I would hope, for all sorts of purposes, is that the two law firms get together, if they have to get a mediator, get a mediator, and start to negotiate what would be a reasonable settlement for both sides.”

When it comes to the issue of deterrence, Neuberger explains that unlike in the criminal context, out-of-court settlements in a civil case are sometimes done on a confidential basis, which means “the general deterrence to other would-be offenders really isn’t there.”

Also, he tells listeners, “As we see with impaired causing death, people as they are drinking and get in their car, are not thinking ‘oh my god, I might be liable to pay $10 or $15 million if I kill a family.’ People just don’t go through that analysis. We wish they would. We wish they’d use more rational analysis — if I drink, I shouldn’t drive. But I don’t ever see the general deterrence.

“And since the Muzzo conviction, frankly, we’ve had at least three or four other notable cases of impaired causing death since then, so unfortunately, I think that the message and the deterrence really isn’t doing the trick.”

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