Dav.Nonpec

Question 1

define non-pecuniary damages

Answer 1

damages for 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 reasons for caps on general non pecuniary damages

Answer 3

• limitless claims by the severely injured lead to extravagant awards
• extravagant awards lead to social burden (availability and affordability issues)
• plaintiff would already be fully compensated for lots of income and future care
• ensures predictability of awards: creates good environment for insurers, more insurers and more consumer choice

Question 4

identify exceptions to Trilogy decision

Answer 4

• sexual abuse (SY v. FGC)
• defamation (Hill v. Church of Scientology, Young v. Bella)
• negligence causing financial loss

Question 5

describe the reason for Supreme Court’s exception to Trilogy Cap

Answer 5

no evidence that these exceptional cases would increase cost of insurance or social burden

Question 6

effect of cap on equity between minor and 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

Question 7

identify 3 relevant cases subsequent to the original Trilogy ruling

Answer 7

• Fenn v. City of Peterborough: only case where award exceeded cap
• Lindal v. Lindal: commented on inflation adjustment
• ter Neuzen v. Korn: cap became rule of law versus just a judical policy directive

Question 8

Facts/ Issues / Rulings of Fenn v. City of Peterborough

Answer 8

1) Facts: Plaintiff was very severely injured
2) Issues:
- when can general damages exceed the 100K cap?
- consider inflation adjustment since Trilogy
- should severity of plaintiff’s injuries be taken into account?
3) Rulings:
- Appeal: plaintiff awarded 125K (higher than 100K cap, Supreme court didn’t comment because no appeal was filed

Question 9

Facts/ Issues / Rulings of Lindal v. Lindal

Answer 9

1) Ruling1: jury awarded plaintiff 135K. Insurer appealed and award was reduced to 100K by BCCA. Plaintiff then appealed to Supreme Court
2) Issue: when should general damages exceed 100K Trilogy cap?
3) Considerations:
- is an inflation adjustment appropriate?
- should severity of plaintiff’s injuries be considered
4) Ruling3:
- Supreme Court supported BCCA decision but stated:
- 100K should be indexed for inflation to a specific point in time
- severity of injuries should not be considered (general damages are not meant to be compensatory)

Question 10

implication of a Supreme Court Appeal for Fenn v. Peterborough

Answer 10

• award lowered to an inflation adjusted 100K (less than 2 years since 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 11

Facts/ Issues / Rulings of ter Neuzen v. Korn

Answer 11

• plaintiff infected with HIV in medical procedure
• when should general damages be >100k Trilogy cap?
• ruling 1: plaintiff awarded 460K general damages, appeals court ordered new trial because 460k > 100k
• ruling 2: original award of 460K was over turned 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
• ruling 3: Supreme Court reinforced the original Trilogy decision. Cap was previously a judicial policy detective and now a rule of law.

Question 12

Facts/ Issues / Rulings of Lee.Dawson

Answer 12

• Lee severely injured
• jury at first trial awarded 2M, but judge reduced the award to 294K (inflation adjusted 100K. Lee appealed to BCCA
  -Issues
  1) violates Charter of Rights
  
  • cap discriminates against the seriously injured
  • ignores the importance of injuries because judge overturned jury award
    2) inconsistent
  • cap is consistent with current community Values
  • communities are now accepting of disabilities
• Ruling2: BCCA was sympathetic but couldn’t overturn the original Supreme Court ruling on Trilogy. Non pecuniary damages are not meant to be compensatory
• Note: Supreme Court declined to hear a further appeal. Cap remains in effect well into the future and the original rationale still considered valid