Davidson

Question 1

Define “non-pecuniary damages”

Answer 1

• Damages that are not readily quantified financially
• Pain and suffering beyond compensation for medical care and loss of income

Question 2

Describe the Trilogy ruling

Answer 2

Supreme Court of Canada established a 100K cap on non-pecuniary damages (later given an inflation adjustment, and subject to certain exceptions)

Question 3

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

Answer 3

1. LIMITLESS claims by the severly injured lead to extravagant awards (pain and suffering awards can be limitless since there is no cap)
2. extravagant awards lead to SOCIAL BURDEN & affect AA
   - AA = Availability & Affordability
3. victim would already be FULLY COMPENSATED for loss of income & future care
4. ensures PREDICTABILITY of awards
   - creates a more appropriate environment for insurers as losses are more predictable

Question 4

Identify exceptions to the Trilogy decision (caps removed) (3)

Answer 4

1. Sexual abuse (S.Y. v F.G.C.)
2. Defamation (Hill v Church of Scientology, Young v Bella)
3. Negligence causing financial loss

Question 5

Describe the reasons for the Supreme Court’s exceptions to Trilogy cap

Answer 5

There is no evidence that general damages in these exceptional cases would increase cost of insurance or social burden

Question 6

Describe how the cap affects the level of equity in compensation between people with temporary or less severe injuries and those with permanent and more severe injuries

Answer 6

• Minor injuries are OVER-compensated
• Major injuries are UNDER-compensated
  (because past a certain severity, there is no longer a distinction based on severity)

The cap is constitutional and it is fair as the benefits are not meant to totally indemnify the injured person

Question 7

Identify 3 relevant cases subsequent to the original Trilogy ruling

Answer 7

1. Fenn v City of Peterborough (only case where award exceeded cap)
2. Lindal v Lindal (commented on inflation-adjustment)
3. ter Neuzen v Korn (cap became rule of law vs just a “judicial policy directive”)

Question 8

Fenn v Peterborough - Facts

Answer 8

Plaintiff was severly injured in this case

Question 9

Fenn v Peterborough - Issues

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?

Question 10

Fenn v Peterborough - Ruling 1,2

Answer 10

Original trial: not discussed in reading

Appeal:
- Plaintiff awarded 125K (higher than 100K cap)
- Took into account that Trilogy had appened 1 & 1/2 years ago so inflation would apply in this case. Moreover, this plaintiff was more injured than all plaintiffs in Trilogy case
(Supreme court didn’t comment because no appeal was filed)

Question 11

Lindal v Lindal - Facts / Ruling 1,2

Answer 11

Ruling 1:
- Jury awarded plaintiff 135K

Appeal:
- Insurer appealed and award was reduced to 100K by BCCA (BC Court of Appeals)
(Plaintiff then appealed to the Supreme Court)

Question 12

Lindal v Lindal - Issues

Answer 12

Issue:
- when should general damages exceed 100K Trilogy cap? (Trilogy explicitely 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?

Question 13

Lindal v Lindal - Ruling 3 (Supreme Court)

Answer 13

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)

Question 14

Lindal v Lindal: Implication of a Supreme Court appeal for Fenn v Peterborough

Answer 14

Likely outcome:
- Award lowered to an inflation-adjusted 100K (less than 2 years between Trilogy & Fenn v Peterborough, so inflation adjustment would result in award lower than the original 125K)
- Severity of plaintiff’s injury should not be considered

Question 15

ter Neuzen v Korn - Facts

Answer 15

Plaintiff infected with HIV in medical procedure

Question 16

ter Neuzen v Korn - Issues

Answer 16

When should general damages be above the 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 award for the Trilogy (lower award)?

Question 17

ter Neuzen v Korn - Ruling 1

Answer 17

Plaintiff awarded 460K in general damages
- Appeal court ordered new trial because 460K > Trilogy 100K cap (even indexed for inflation)

Question 18

ter Neuzen v Korn - Ruling 2

Answer 18

Original award of 460K over-turned (insurer succeeded in appeal)
- Since no general damages were awarded, the cap was not relevant
- If general damages had been awarded, the court would have capped the amount at the Trilogy limit anyway

Question 19

ter Neuzen v Korn - Ruling 3

Answer 19

Supreme Court reinforced the original Trilogy decision
- The cap was previously a “judicial policy directive”
- The cap is now a rule of law

Question 20

Lee v Dawson - Facts & Ruling 1

Answer 20

Lee was severly injured
- Jury at 1st trial awarded 2M, but judge reduced award to 294K (i.e. inflation adjusted 100K)
- Lee appealed to BCCA (BC Court of Appeals)

Question 21

Lee v Dawson - Issues / Arguments (regarding cap)

Answer 21

VIOLATES charter of rights
- cap discriminates against the seriously injured as less seriously injured victims are entitled to full compensation for pain & suffering whereas severily injured are not due to the cap.

INCONSISTENT
- cap is inconsistent with current community values
- communities are now more accepting of disabilities

Upper limit precludes juries from keeping up with the pace of social, economic and technological changes in society

Question 22

Lee v Dawson - Ruling 2 (appeal) + reasons (2), Ruling 3 (Supreme Court)

Answer 22

BCCA judges decision:
- Court recognizes it might be time to rationalize and examine the cap and the submissions seem compelling, but the court of appeals cannot overturn the trilogy
- Arguments based on Charter were rejected as awards for general damages were never meant to provide full compensation, so it should not be dependent of the seriousness of injury

Note:
- Supreme Court DECLINED to hear a further appeal (this means that SCC probably still supports the limit on non-pecuniary damages for personal injury & rational behind the decision)
- Cap remains in effect well into the future & the original rationale still considered valid