Davison - Non Pecuniary Damages

Question 1

What are non-pecuniary damages?

Answer 1

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

Question 2

Describe the Trilogy ruling.

Answer 2

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

Question 3

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

Answer 3

• 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)

Question 4

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

Answer 4

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

Question 5

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

Answer 5

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

Question 6

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

Answer 6

• 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)

Question 7

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

Answer 7

• 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))

Question 8

Fenn v City of Peterborough - Facts

Answer 8

The plaintiff was SEVERELY injured.

Question 9

Fenn v City of Peterborough - Main Issue

Answer 9

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)

Question 10

Fenn v City of Peterborough - Rulings 1,2

Answer 10

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

Question 11

1981 Lindal v Lindal - Facts/Ruling 1,2

Answer 11

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

Question 12

1981 Lindal v Lindal - Main Issue

Answer 12

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

Question 13

1981 Lindal v Lindal - Ruling 3 (Supreme Court)

Answer 13

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

Question 14

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

Answer 14

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

Question 15

1995 ter Neuzen v Korn - Facts

Answer 15

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

Question 16

1995 ter Neuzen v Korn - Main Issue

Answer 16

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?

Question 17

1995 ter Neuzen v Korn - Ruling 1

Answer 17

Award: $460k in General Damages

Appeal court ordered new trial because it exceed the cap

Question 18

1995 ter Neuzen v Korn - Ruling 2 (Appeal)

Answer 18

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

Question 19

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

Answer 19

They reinforced the Trilogy decisions.

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

Question 20

2006 Lee v Dawson - Facts, Ruling 1

Answer 20

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

Question 21

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

Answer 21

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

Question 22

2006 Lee v Dawson - Ruling 2 (Appeal)

Answer 22

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

Question 23

2006 Lee v Dawson - Ruling 3 (Supreme Court)

Answer 23

• 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