DAV.NONPEC Flashcards
Define the term non-pecuniary damages
damages that are not easily quantified (pain & suffering)
Describe the outcome of the 1978 Trilogy
Supreme court of Canada established a 100k cap on non-pecuniary damages
Describe reasons for caps on non-pecuniary damages (4)
- limitless claims lead to extravagant awards
- extravagant awards may lead to social burden and affect affordability and availability of insurance
- victims are already fully compensated for income loss and future care
- creates a more appropriate environment for insurers as losses are more predictable
Identify exceptions to Trilogy decision (caps removed) (3)
- sexual assault
- defamation
- negligence causing financial loss
Describe the reasons for the Supreme Court’s exception to Trilogy cap
no evidence that these exceptional cases would affect affordability or availability of insurance
Fenn v Peterborough: Facts, issues and rulings
plaintiff was severely injured
When can general damages EXCEED the 100K cap? (Recall that TRILOGY already has exceptions for sexual abuse & defamation.)
CONSIDERATIONS:
- inflation adjustment since Trilogy?
- should severity of plaintiff’s injuries be taken into account?
Original Trial: not discussed in reading
Appeal:
→ plaintiff awarded 125K (higher than 100K cap)
(Supreme Court didn’t comment because no appeal was filed)
Lindal v Lindal: issues and rulings
Issue:
→ when should general damages exceed 100K Trilogy cap?
(Trilogy explicitly mentioned cap can be exceeded in exceptional cases)
Considerations for exceeding cap:
→ is an inflation adjustment appropriate
→ should severity of plaintiff’s injuries be considered
Ruling 1:
→ jury awarded plaintiff 135K
Appeal:
→ insurer appealed and award was reduced to 100K by BCCA (BC Court of Appeals)
Supreme Court supported BCCA decision but stated
[1] 100K should be indexed for inflation to a specific point in time (1978)
[2] severity of injuries should not be considered (general damages are not meant to be compensatory)
ter Neuzen v Korn: facts, issues and rulings
plaintiff infected with HIV in medical procedure
when should general damages be > 100K Trilogy cap?
→ here, the jury award exceeded the Trilogy cap (even after adjusting the 100K cap for inflation)
→ should the court just substitute its own (lower) award?
plaintiff awarded 460K (general damages)
→ Appeals Court ordered new trial because 460K > 100K Trilogy cap
original award of 460K over-turned (insurer succeeded in appeal)
Supreme Court reinforced the original Trilogy decision
→ the cap was previously a “judicial policy directive”
→ the cap is now rule of law
Lee v Dawson: facts, arguments, rulings
Lee severely injured
- jury at 1st trial awarded 2m, but judge reduced the award to 294K (i.e. inflation-adjusted 100K)
- Lee appealed to BCCA (British Columbia Court of Appeals)
VIOLATES charter of rights
- cap discriminates against the seriously injured
IGNORES the importance of juries (because judge overturned jurty award)
INCONSISTENT
- cap is inconstistent with current community values
- communities are now more accepting of disabilities
BCCA judges decision:
- BCCA was sympathetic but couldn’t overturn the original Supreme Court ruling on Trilogy
- also, non-pecuniary damages not meant to be compensatory
Note:
- Supreme Court DECLINED to hear a further appeal
- cap remains in effect well into the future & the original rationale still considered valid
Lee v Dawson: facts, arguments, rulings
Lee severely injured
- jury at 1st trial awarded 2m, but judge reduced the award to 294K (i.e. inflation-adjusted 100K)
- Lee appealed to BCCA (British Columbia Court of Appeals)
VIOLATES charter of rights
- cap discriminates against the seriously injured
IGNORES the importance of juries (because judge overturned jurty award)
INCONSISTENT
- cap is inconstistent with current community values
- communities are now more accepting of disabilities
BCCA judges decision:
- BCCA was sympathetic but couldn’t overturn the original Supreme Court ruling on Trilogy
- also, non-pecuniary damages not meant to be compensatory
Note:
- Supreme Court DECLINED to hear a further appeal
- cap remains in effect well into the future & the original rationale still considered valid
