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Damage Awards for Pain & Suffering: Not As Much As You Might Think

Victor Lewin - Tuesday, July 26, 2011

Car accidents, slip and falls and medical errors are daily occurrences in Nova Scotia, New Brunswick and P.E.I. They are often the result of someone's negligence and the victims of such incidents will usually suffer injuries of some sort.

Tragically some will suffer injuries of a catastrophic nature. Some of these severe injuries can include brain damage, spinal cord injuries, quadriplegia, and birthing damage like cerebral palsy.

Victims who suffer such injuries as a result of another's negligence are, under law, entitled to compensation for the "pain and suffering" they will endure over the course of their lifetime. Such awards are referred to as "non-pecuniary damages" and are intended to compensate the victim for the loss of enjoyment of life he or she will go through as a result of the debilitating injury.

The monetary evaluation of a victim's pain and suffering cannot be done using a calculator. The evaluation is a philosophical one. While understanding that no amount of money will adequately compensate for a catastrophic, debilitating injury, judges and juries are nonetheless tasked with making the assessment. Logic says that the greater a person's suffering, the greater the damages. However, this is not the case.

In 1978, the Supreme Court of Canada in the seminal case of Andrews v. Grand & Toyadopted as the appropriate award in the case of a young adult quadriplegic, the amount of $100,000 in general damages. The Court stated that this should be regarded as an upper limit of non-pecuniary loss in catastrophic cases (later, in InLindal v. Lindal, the Supreme Court of Canada confirmed that this cap amount should be allowed to grow with inflation). Presently, the cap is a little over $300,000.

On the surface, this may sound like a lot of money. However, for a young man who is rendered paralyzed in a car accident and who has to spend the rest of his life in a wheelchair, or a young girl who suffers brain damages as a result of a doctor's negligence, this amount is small consolation.

The imposed upper limit has been the subject of much criticism from the members of the public, lawyers and various lower courts, particularly in the context of jury awards. It is felt by many that it is time for the Supreme Court of Canada to revisit the "upper limit".

The 2006 case of Lee v. Dawson presented a good opportunity. The plaintiff in that case was a 17 year old boy who was injured in a car accident as a result of another driver's negligence. As a result, he sustained permanent brain injury which caused severe depression, a permanently impaired psychological growth and a facial disfigurement. After hearing all of the evidence, a jury of his peers awarded him $2 million dollars for his pain and suffering. This was reduced by the judge to the "upper limit". The boy appealed and advanced the following arguments:

(i) The language used to describe the rough upper limit in the trilogy referred to the rough upper limit not as a strict rule of law, but as a guideline, the purpose of which was to set a "rough upper parameter" on non-pecuniary loss;

(ii) Time and judicial experience with the rough upper limit have demonstrated that it has been converted into a strict rule of law, which is a role that ought to have been left to the legislature. The fact that the guideline has been converted into a strict rule of law is demonstrated by the fact that since the trilogy, no court has awarded or upheld a non-pecuniary award that exceeds the guideline amount;

(iii) Twenty-five years have passed since the trilogy set out the upper limit. The policy reasons that justified its adoption no longer exist, and the continued imposition of the rough upper limit is not justified;

(iv) In the trilogy, the Supreme Court noted that the possibility of having an extravagant claim was higher with respect to non-pecuniary damages because of the difficulties with quantification of the injuries for which non-pecuniary damages compensate. In the plaintiff's submission, difficulty in quantification does not relieve the court of its obligation to determine the issue;

(v) In the trilogy, the Supreme Court was concerned that non-pecuniary damages might be awarded on the basis of improper considerations such as sympathy for the plaintiff, a desire to punish the defendant, or a perception of the defendant's "deep pockets". The plaintiff submits that a solution that is more rationally connected to this potential problem than an upper limit is a jury instruction that warns of the impropriety of these considerations;

(vi) The Supreme Court in the trilogy expressed concern that non-pecuniary awards were increasing but that conclusion was not arrived at on the basis of any empirical evidence. Subsequent studies have demonstrated that the notion of sky-rocketing non-pecuniary awards is a false perception;

(vii) A further policy consideration that was contemplated in the trilogy was that pecuniary awards provide the plaintiff with full compensation, and non-pecuniary awards should, therefore, be modest. The plaintiff argues that that conclusion assumes perfect compensation with respect to other heads of damage, and ignores other costs that might impair the ability of pecuniary awards to provide perfect compensation. Additionally, each head of damages is intended to address a specific loss, and non-pecuniary losses are not unique in this regard. The amount of non-pecuniary loss that is suffered is not contingent on the pecuniary losses the plaintiff has sustained;

(viii) In the trilogy, the Supreme Court was concerned with the high social impact of high non-pecuniary awards. It highlighted increased insurance premiums as an example. The plaintiff submits that again, the Court made an assumption in the absence of evidence capable of supporting it;

(ix) The rough upper limit disregards juries, and the importance of juries outweighs any hypothetical benefits that the guideline might bestow. The plaintiff argues that the jury is the only trier of fact capable of keeping up with the rapid pace of social, economic and technological change in our society. The imposition of the rough upper limit precludes juries from addressing these questions, with the result that the values of the community, as represented by the jury, are ignored. Moreover, the limit forces this Court to apply different standards to low jury awards and high jury awards. When reviewing a low award, the Court of Appeal applies the palpable or overriding error standard, on the assumption there is some evidentiary basis for the low award whereas a high award is reviewed on the comparative approach, thus ignoring the deference which ought to be shown to the factual findings of juries;

The Court of Appeal found these arguments compelling but stated that they were not in a position to overturn the upper limit imposed by the Supreme Court of Canada. When the accident victim asked for his case to be heard by the Supreme Court of Canada, he was refused.

It is difficult to reconcile the deference Judges and Appellate Courts must give to a jury's decision with a rule that automatically replaces their award if it's deemed too high. This serves to undercut the basic value of the jury.

What good is a body that supposedly uniquely qualified to assess the damages suffered by an injured victim (because they are members of the victim's community) when their award is subsequently reviewed and modified by judges (who are usually not members of that community)?

The lawyers at Wagners have seen first hand the prejudice caused by imposing an upper limit the damages that can be awarded to a severely accident victim. It is believed that with time, progress will be made and the law modified such that it can be better reflective of community values. In today's society, with rising athlete salaries and CEO bonuses, the community conscious (reflective in a jury award) would award a far greater sum of money than $300,000 for a young disabled victim of a tragic accident. It is time for the Courts to appreciate this change in the community conscious and get ride of, or raise, the upper limit on general damages.

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