This paper reviews a recent case from British Columbia in which the cap on general damages was unsuccessfully challenged and will then consider some recent case law assessing future pecuniary losses. It then turns to a consideration of the court’s approach to assessing damages for family members of individuals who have been injured or killed. Finally, this paper briefly reviews developments in the area of leading evidence to establish damages.
Introduction
A discussion of damages would be incomplete without a reference to the three Supreme Court of Canada cases, known as the “trilogy,” consisting of Arnold v. Teno1, Thornton v. School District No. 572, and Andrews v. Grand & Toy3. All of these cases involved catastrophically injured Plaintiffs who faced a lifetime of dependency on others. The trilogy established the principles applicable to the assessment of damages in personal injury cases and, in particular, set out various “heads of damages” under which an injured person is entitled to recover compensation, as follows:
- Non-pecuniary Loss (i.e. compensation for physical and mental pain and suffering).
- Pecuniary Loss:
- Compensation for past and future care costs; and
- Compensation for past and future loss of income.
The Andrews case is notable for the establishment of an “upper limit” or “cap” on non-pecuniary general damages of $100,000.00 to be adjusted according to inflation. As a result of this cap, general damages for pain and suffering have slowly risen over the last 29 years. Today, a catastrophically injured plaintiff would be entitled to a maximum of approximately $311,000.00 (as at January 2007) for his or her pain and suffering.
In contrast, over the last 29 years, there have been significant developments in the assessment of damages for pecuniary loss, with the categories of damages expanding and becoming more clearly defined to reflect the general principles established in Andrews; namely, that future care is of paramount importance and that a plaintiff’s pecuniary claim includes all reasonable sums of money that will assist with putting the plaintiff back into the position in which he or she would have been had the injury not occurred.
Notes:
1 [1978] 2 S.C.R. 287.
2 [1978] 2 S.C.R. 267.
3 2 S.C.R. 229 [hereinafter “Andrews”].
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Are Damages Awards on the Rise? Learning Cold Hard Lessons from Recent Negligence-Based Litigation