Davison - Non Pecuniary Damages Flashcards

1
Q

What are non-pecuniary damages?

A

Damages that are not readily quantified or valued in money, such as proposed compensation for pain & suffering (NOT the same as punitive damages).

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2
Q

Describe the Trilogy ruling.

A

The supreme Court of Canada established a $100k cap on non-pecuniary damages (later given an inflation adjustment, and subject to certain exceptions).

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3
Q

Trilogy - Describe the reasons for caps on general (non-pecuniary) damages. (4)

A
  • 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)
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4
Q

Trilogy - Identify exceptions to the Trilogy decisions (when caps are removed). (3)

A
  • sexual abuse (S&Y v F.G.C.)
  • defamation (Hill v Church of Scientology, Young v Bella)
  • negligence causing financial loss
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5
Q

Trilogy - Describe the reasons for the Supreme Court’s exceptions to Trilogy Cap.

A

No evidence that these exceptions cases would increase the cost of insurance or social burden.

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6
Q

Trilogy - Effect of cap on equity between minor and severe injuries. (2)

A
  • 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)
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7
Q

3 relevant cases (and provide a factoid for each).

A
  • 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))
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8
Q

Fenn v City of Peterborough - Facts

A

The plaintiff was SEVERELY injured.

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9
Q

Fenn v City of Peterborough - Main Issue

A

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)

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10
Q

Fenn v City of Peterborough - Rulings 1,2

A
  • Original Trial: not discussing in reading
  • at APPEAL: plaintiff was awarded $125k
  • there was NO further appeal to the Supreme Court
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11
Q

1981 Lindal v Lindal - Facts/Ruling 1,2

A
  • Jury awarded $135k
  • Insurer APPEALED: award was reduced to $100k by the BC Court of Appeal
  • the Plaintiff appealed to the Supreme Court
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12
Q

1981 Lindal v Lindal - Main Issue

A

When should general damages EXCEED the $100k cap?
CONSIDERATIONS:
- inflation adjustment since trilogy?
- should severity of plaintiff’s injuries be taken into account?

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13
Q

1981 Lindal v Lindal - Ruling 3 (Supreme Court)

A

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
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14
Q

1981 Lindal v Lindal - Implication of a Supreme Court appeal for Fenn v Peterborough

A

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
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15
Q

1995 ter Neuzen v Korn - Facts

A

Plaintiff infected with HIV as a result of an artificial insemination procedure.

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16
Q

1995 ter Neuzen v Korn - Main Issue

A

When should General Damages EXCEED the $100k cap?

The jury awarded an amount greater than the inflation adjusted cap: should the court just substitute its own award?

17
Q

1995 ter Neuzen v Korn - Ruling 1

A

Award: $460k in General Damages

Appeal court ordered new trial because it exceed the cap

18
Q

1995 ter Neuzen v Korn - Ruling 2 (Appeal)

A

First ruling is overturned and no damages are awarded.

- in the event that there would have been damages, they would be subject to the cap anyway

19
Q

1995 ter Neuzen v Korn - Ruling 3 (Supreme Court)

A

They reinforced the Trilogy decisions.

- this caused the cap to be solidified as a Rule of Law rather than just Judicial Policy Directive

20
Q

2006 Lee v Dawson - Facts, Ruling 1

A

Lee sustained severe brain and facial injuries

  • jury at 1st trial awarded $2M but judge reduced the reward to the inflation adjusted cap amount of $294k
  • Lee appealed to the BC Court of Appeals
21
Q

2006 Lee v Dawson - Main Issues (3) and Arguments (regarding the cap)

A

VIOLATES the charter of rights:
- cap discriminates against the seriously injured
IGNORES the importance of juries (because Judge overturned the award given by the jury)
it is INCONSISTENT:
- cap is inconsistent with current community values
- communities are now more accepting of disabilities

22
Q

2006 Lee v Dawson - Ruling 2 (Appeal)

A

BC Court of Appeals decision:

  • BCCoA was sympathetic but couldn’t overturn the original Supreme Court ruling on Trilogy
  • also, non-pecuniary damages are not meant to be compensatory
23
Q

2006 Lee v Dawson - Ruling 3 (Supreme Court)

A
  • The Supreme Court DECLINED to hear a further appeal

- the cap remains in effect well into the future & the rationale for the decisions is still considered valid