Personal Injury

The Cap on Non-Pecuniary Damages in British Columbia and the Necessity of Empirical Data

What are pecuniary and non-pecuniary damages?

Pecuniary damages are economic losses related to lost income and added expenses. Pecuniary damages can be quantified in monetary terms e.g., lost wages or cost of care.

Non-pecuniary damages, on the other hand, are non-economic losses. Broadly, non-pecuniary damages are to compensate for the loss of life’s pleasures eg., loss of amenities, pain and suffering, and loss of expectation of life.

Evidence is led to demonstrate the enjoyment of life prior to the injury and the lesser enjoyment of life up to and after trial.

Why is there a cap on non-pecuniary damages?

Since 1978, the award of non-pecuniary damages in personal injury cases has been governed by a rough upper limit set by the Trilogy. The Trilogy refers to a series of rulings by the Supreme Court of Canada.

The SCC reasoned that the limit is necessary to prevent the social burden of such awards which in the United States, it assumed, had soared to dramatically high levels.

Chief Justice Dickson stated that the “monetary evaluation of non-pecuniary losses (is) a philosophical and policy exercise more than a legal or logical one”.

Why should we include empirical data?

The Supreme Court of Canada capped damages without citing any empirical or academic studies to support its opinion of the American legal landscape. Had this been done, the evidence would have revealed data contrary to the SCC’s opinion. The current cap on non-pecuniary damages is nothing but an artificial judicial fiction. The “philosophical and policy exercise” of damages assessments needn’t be detached from empiricism. Including consideration of existing data in legal reasoning will move our legal system towards one more fair and just.

Why is the cap on non-pecuniary damages unjust?

Ceilings unfairly impact those who became victims of grievous personal injuries, whose situations could be improved by a proper award. Justice for the individual and the catastrophically injured person is sacrificed for the sake of predictability and ease of assessment.

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