Davison - Non Pecuniary Damages Flashcards
What are non-pecuniary damages?
Damages that are not readily quantified or valued in money, such as proposed compensation for pain & suffering (NOT the same as punitive damages).
Describe the Trilogy ruling.
The supreme Court of Canada established a $100k cap on non-pecuniary damages (later given an inflation adjustment, and subject to certain exceptions).
Trilogy - Describe the reasons for caps on general (non-pecuniary) damages. (4)
- essentially LIMITLESS: claims by the severely injured LEAD TO extravagant awards
- extravagant awards LEAD TO social burden (Affordability & Availability issues)
- plaintiff would already be FULLY COMPENSATED for loss of income & future care
- ensures PREDICTABILITY of awards (creates good environment for insurers -> LEADS TO insurers entering the market -> LEADS TO lots of choice for consumers)
Trilogy - Identify exceptions to the Trilogy decisions (when caps are removed). (3)
- sexual abuse (S&Y v F.G.C.)
- defamation (Hill v Church of Scientology, Young v Bella)
- negligence causing financial loss
Trilogy - Describe the reasons for the Supreme Court’s exceptions to Trilogy Cap.
No evidence that these exceptions cases would increase the cost of insurance or social burden.
Trilogy - Effect of cap on equity between minor and severe injuries. (2)
- minor injuries are OVER-compensated
- more severe injuries are UNDER-compensated (because once past a certain severity, there is no longer a distinction based on severity)
3 relevant cases (and provide a factoid for each).
- Fenn v City of Peterborough (Award was greater than the Cap)
- Lindal v Lindal (the courts first made a comment on the need for inflation adjustment to the cap)
- ter Neuzen v Korn (where cap went from JPD (Judicial Policy Directive) to RoL (Rule of Law))
Fenn v City of Peterborough - Facts
The plaintiff was SEVERELY injured.
Fenn v City of Peterborough - Main Issue
When can general damages EXCEED the $100k cap?
CONSIDERATIONS:
- inflation adjustment since TRILOGY?
- Should severity of plaintiff’s injuries be taken into account? (plaintiff suffered more substantial pain than any plaintiffs in trilogy)
Fenn v City of Peterborough - Rulings 1,2
- Original Trial: not discussing in reading
- at APPEAL: plaintiff was awarded $125k
- there was NO further appeal to the Supreme Court
1981 Lindal v Lindal - Facts/Ruling 1,2
- Jury awarded $135k
- Insurer APPEALED: award was reduced to $100k by the BC Court of Appeal
- the Plaintiff appealed to the Supreme Court
1981 Lindal v Lindal - Main Issue
When should general damages EXCEED the $100k cap?
CONSIDERATIONS:
- inflation adjustment since trilogy?
- should severity of plaintiff’s injuries be taken into account?
1981 Lindal v Lindal - Ruling 3 (Supreme Court)
Supreme court supported the BC Court of Appeals decision BUT STATED:
- the $100k cap should be indexed for inflation to a specific point in time (1978)
- severity of injuries SHOULD NOT be considered since general damages are not meant to be compensatory
1981 Lindal v Lindal - Implication of a Supreme Court appeal for Fenn v Peterborough
LIKELY OUTCOME:
- award would have been lowered to an inflation adjusted $100k (only 18 months has passed since Fenn v Peterborough, so inflation adjustment would result in award lower than $125k)
- severity of plaintiff’s injury should not be considered
1995 ter Neuzen v Korn - Facts
Plaintiff infected with HIV as a result of an artificial insemination procedure.