A - Davidson (Trilogy)

Question 1

DAVIDSON (TRILOGY)

4 justifications to establish a cap on non-pecuniary damages in 1978 Trilogy

Answer 1

1) claim on severely injured person for non-pecuniary loss is virtually limitless (can lead to extravagant awards)
2) non-pecuniary damages is not to indemnify (no money can provide for true restitution) but to make life more endurable
3) Extreme awards can lead to excessive social burden and lead to un-affordable premium.
4) plaintiffs are already fully indemnified for future loss or income and care costs (economic damages) which are more important
5) to ensure predictability and stability of awards

Question 2

DAVIDSON (TRILOGY)

3 exceptions in which the cap on non-pecuniary damages does not apply.

Answer 2

1) sexual assaults
2) defamation
3) non-pecuniary damage outside the personal injury context

Question 3

DAVIDSON (TRILOGY)

discuss subsequent Trilogy case :
FENN v CITY OF PETERBOROUGH

Answer 3

• Only decision where the award exceeds the cap imposed by the trilogy
• Court of appeal played on wording that the cap should not be exceeded, except in exceptional circumstances
• Awards of 125K$ on non-pecuniary damages

Question 4

DAVIDSON (TRILOGY)

discuss subsequent Trilogy case :
LINDAL v LINDAL

Answer 4

• Supreme Court REPEATED that non-pecuniary damage are not meant to compensate but to make life more endurable.
• Limit of 100K is to apply to all cases, regardless of the nature of the injury.
• From this decision, 100K is to be indexed for inflation.

Question 5

DAVIDSON (TRILOGY)

discuss subsequent Trilogy case :
TER NEUZEN v KORN

Answer 5

• Plaintiff infected with AIDS through artificial insemination.
• Jury awards amount for general damages exceeding upper limit set by trilogy.
• cap was applied
• with this decision, cap more officially became a “rule of law”

Question 6

DAVIDSON (TRILOGY)

Discuss subsequent Trilogy case
LEE v. DAWSON

facts of the case
arguments of BC Court of appeal

Answer 6

• Young plaintiff had brain and facial injuries.
• At trial, jury awarded 2M$, but trial judge reduced award to 100K indexed for inflation
• BC Court of Appeal : plaintiff stated that the cap was discriminating against seriously injured victims of negligence, using the Charter.
• BC Court of Appeal rejected the argument, as general damages were never meant to compensate the plaintiff.
• Also, general damages should not depend on seriousness of injury.

-Supreme court of Canada dismissed the appeal without reason which means that they probably still support the limit on non-pecuniary damages.
CAP IS NOW IRREVERSIBLE

Question 7

DAVIDSON (TRILOGY)

Discuss subsequent Trilogy case
LEE v. DAWSON

Arguments presented in this case that supported the removal of the cap

Answer 7

1) cap discriminated against seriously injured victims of negligence
2) trilogy predated the charter and had never been subject to a charter analysis.
3) rough upper limit was not a strict rule of law
4) skyrocketing awards and insurance premium had proven to be false
5) upper limit prevent juries from keeping up with change in society.
6) cap is inconsistent with modern community values, which are more accepting of disabilities
7) rough limit disregards juries
8) cap is arbitrary and lacking a logical foundation

Question 8

DAVIDSON (TRILOGY)

Contrast application of cap on non-pecuniary damage on PERSONAL INJURY vs
SEXUAL ASSAULT AND DEFAMATION

Rationale?

Answer 8

For personal injury, cap is applied.

Rationale is that damage must not result in unaffordable increases in insurance or social costs.

For defamation and sexual assault, cap is not applied.
Rationale is that it has no impact on public purse.

Question 9

DAVIDSON (TRILOGY)

how does the cap affects the level of equity in compensation between less severe injureds and more severe injureds

Answer 9

Overcompensate less severe injureds and undercompensate more severe injureds

Question 10

DAVIDSON (TRILOGY)

insured suffers severe brain injuries in car accident because of another driver’s negligence and will no longer be able to work.

Future income estimated to be 2M$

How cap established in Trilogy will be applied?

Answer 10

cap should only apply on non-pecuniary damages.
cap will be indexed for inflation
cap will not affect economic damages to compensate loss of future income.

Question 11

DAVIDSON (TRILOGY)

Outcome of 1978 Trilogy

Answer 11

Established a cap (rough upper limit) on non-pecuniary general damages at 100K