Basic Process for Assessing Damages: 97 Select interest that deserves vindication 97 a. Restitution 97
III. Remedies for Personal Injury
Download 1.08 Mb.
|
- Navigate this page:
- Andrews (The “Trilogy”): Overview of Methodology
- Lump Sums: Finality vs. Accuracy
- The “Insurance Crisis”
- New Theoretical Basis – The Functional Approach
- Basics of the Functional Approach
- Logical Conclusions of the Functional Approach
- Problems with the Canadian Approach
III. Remedies for Personal InjuryContext: The Role of Tort in Dealing with DisabilityTheoretical Basis Compensation, deterrence, corrective justice, dispute resolution Is tort the best way to achieve these goals? Alternatives? Itemizing Damages There must be a rationale for why particular heads of compensation are used, and in what amounts. Tort law can act as a junior partner in injury response. Other sources include: Workers compensation: Public compensation scheme, available in every province; provides compensation to people injured in the course of employment Vastly most significant than tort law in providing compensation. Plus, worker’s comp is exclusive/exhaustive it’s a complete system; can’t go to worker’s comp then move to claim in tort law as well. Provincial health insurance Automobile insurance – first party no-fault benefits People buy liability insurance, to cover them in the event that someone is injured, but we also have first party benefits to give compensation if the driver is injured. This helps keep smaller injuries out of court, reducing transaction costs of providing compensation. Private disability insurance Public disability plans (pensions): EI, social welfare, CPP Tort as a problematic mechanism for addressing injury/disability. See Dickson J’s comments in Andrews, at pg. 492. Efficiency: litigation is uncertain, time consuming and expensive. Tort provides uneven coverage. Tort in the world of insurance does not promote deterrence Occasional spectacular lump sum awards highlight: (a) moral arbitrariness (b) pragmatic problems for prediction and management Andrews (The “Trilogy”): Overview of MethodologySCC dealt with three cases at once: Andrews v. Grand & Toy; Teno; Thornton v. Prince George School Court came very close to legislating in these decisions. Set out a highly systematic approach to personal injury damages Special (past) damages General (future) damages – itemize for appellate review and settlement predictability. Cost of care, standard of care, predictions. Collateral benefits – how are these addressed? Taxation: (a) deducted from lost earnings? (b) add-on for impact on award? Discounting to a lump sum Management fees, structured settlements
Advantages and DisadvantagesSee Dickson J’s comments in Andrews at pg. 492 Courts need to consider the amount needed for annual support over a lifetime, but also how spending power will be reduced over time. Shifting needs are an issue – a lump sum is a once-and-for-all decision. Andrews, 21, has a remaining life span of 43 years, and is awarded $740k to provide for his needs over the next 43 years. BUT, we don’t know what his needs will be over that whole time period. We sort of need to, though… Contingencies How courts deal with uncertainty and future changes.
DiscountingHow courts deal with future changes in the value of money Theoretical basis:Discount rate is a percentage that takes into account the combined effect of investment earnings and inflation. A dollar today is worth more than a dollar tomorrow. Theory: future value must take into account the negative effects of inflation, and the positive effects of compound interest. Rule from the Trilogy: subtract inflation (3%) from interest rates (10%) to determine the discount rate (so, 7%). So, to give $100/year: Need $100 this year, 93 next year (100% minus 7%), 87 the following year (93% minus 7%), 81 the next year, and so on. The Trilogy Mistake:The inflation rate was higher than the court anticipated, and the difference meant that the assumed rate of return was basically halved. Data in 1975: Inflation: 10% Long term inflation forecast: 3.5% Long term bonds: $10% So, to produce $100 in 45 years: 7% = $4.76 3% = $26.44 $500,000 lump sum for 45 years (per Andrews) 7% = $34,346/year 3% = $19,798/year
Law and Equity ActCorrects the error and facilitates settlement and adjudication Discount Rates: s. 56 (1) in this section: “discount rate” means the rate, expressed as a percentage, used in calculating the present value of future damages. “future damages” means damages to compensate for pecuniary losses to be incurred, or expenditures to be made, after the date of the trial judgment in a proceeding. (2) The Chief Justice of the Supreme Court may make regulations prescribing: (a) the discount rate that is deemed to be the future difference between the investment rate of interest and the rate of increase of earnings due to inflation and general increases in productivity, and… [2.5% for future earnings] (b) the discount rate that is deemed to be the future difference between the investment rate of interest and the rate of general price inflation. [3.5% for cost of care] (3) In a proceeding, the discount rate prescribed under (2)(a) must be used in calculating the present value of future damages that are intended to compensate for or are determined with reference to (a) loss of earnings because of partial or total loss of income-earning capacity, or (b) loss of dependency under the Family Compensation Act (4) The discount rate prescribed under (2)(b) must be used in calculating the present value of all future damages other than those referred to in (3). Non-Pecuniary LossesThe conundrum: money can’t buy happiness. Pain and suffering is not commensurable (can’t be measured in money) Issue: how do we compensate something with money that can’t really be measured in money? The old approach: pain & suffering, lost amenities or enjoyment of life, lost expectation of life all awarded with general arbitrary sum
Courts’ approach in personal injury cases didn’t lend itself to predictability. Judges and juries were just tossing out numbers and it was difficult to see the parameters for an award. Uncertainty bred a litigation explosion – can’t settle if you don’t even know what the range of damages is. Dramatic escalations in auto insurance premiums Defensive medicine: Doctors fleeing North America to practice in jurisdictions where the fear of tort litigation wasn’t so high. Changing medical practice b/c doctors were always trying to protect against liability. Public services and amenities (schools, parks) Rash of closures of fun playground equipment, ridiculously overprotective safety measures put in because of the fear of liability/increased costs. Media focus on spectacular awards
As Opposed To:The Conceptual Approach Trying to capture human facilities and ascribe costs to them Sometimes described as a “meat chart” approach. Injury, and a dollar value associated therewith. Does get some certainty, but not the best. The Personal Approach Developments on the conceptual approach: take the same chart, but personalize it. A hand injury to one person might not be as serious as to another, depending on their personal circumstances. E.g. a pianist’s hands are arguably more valuable. Lends itself to ‘invidious’ comparisons comparability problems between injuries and consequent awards.
Substituting one imperfect system of measurement for other imperfect systems. The CapControls social costs. In Andrews, the court imposed a rough upper limit: Unless in exceptional circumstances, the max award in this category is $100k. This was done explicitly on the basis of the insurance crisis social costs can be taken into account here as a matter of policy, to maintain some regulation on those costs. The ‘rough upper limit’ really operates as a cap – no courts have made awards above it. Note inflationary increase: as of October 2012 the upper limit is about $342k. Logical Conclusions of the Functional ApproachNot based on severity of the injury, but on ability to use money [See Lindal at para 17] The same injury in two different people will likely have different non-pecuniary losses. Issues: lost years, age Unconscious or vegetative π [see Wipfli; Tonneguzzo; Brimacombe; Bystedt] Consistency? Factors? Factors to consider in compensating for non-pecuniary loss in a brain injury case: Ability to appreciate what has been lost E.g. experience pleasure, pain, enjoyment, sadness Attempts to communicate Attentional abilities Life expectancy Problems with the Canadian ApproachBerryman et al The functional approach isn’t really applied in practice. So, basically, everyone talks about the functional approach, but then everyone runs to the meat charts and uses them anyway. The cap doesn’t apply to aggravated damages in other areas E.g. defamation (Hill), debate re sexual assault cases This appears to create anomalies Problem of compression/relative unfairness Any award above the cap will be overturned. The cap is meant to be reached only by really extreme injuries, etc. Most personal injury cases aren’t about quadriplegia, they’re about whiplash and broken bones, etc. But, awards for these things are creeping up. So, the cap really just means that catastrophic cases aren’t getting much in comparison – not much (if anything) more than the basic injury cases Because of the lack of regulatory scaling, the real costs of insurance and litigation are resulting from these minor injuries. Chaos below the cap: no jury direction, no scale, no consistency Technically, no one uses the word “cap” – judgments still call it the rough upper limit. But no case has ever exceeded that limit, so it’s really a solid ceiling on non-pecuniary damages for personal injury. AlternativesTake the functional approach seriously Remove cap entirely and leave it to juries English model: common law conceptual approach with guidance Australian model: statutory scale based on severity Start at the top (most catastrophic) and scale down. So, e.g. quadriplegia = 100% of cap awarded, then lesser amounts depending on severity of injury This model may encourage settlement (since it makes it easy to calculate damages), meaning there will actually be more money for πs (since less money spent on litigation) Eliminate non-pecuniary damages altogether in personal injury cases Money would be reallocated to other purposes New Zealand has essentially abolished the tort system: Statutory no-fault compensation scheme. Small amounts on non-pecuniary side, but uses the savings to provide compensation to a much broader class of things on the pecuniary side.
Directory: outlines outlines -> Chabot College Fall 2010 Course Outline for Computer Application Systems 60 business software applications/general accounting outlines -> Adil Khan Contracts Midterm outline- waldron outlines -> Remedies for breach of promise (1) The Interests Protected outlines -> Chapter Five: Written Documents 1 Unsigned Documents 1 outlines -> Cases and Materials on Contracts outlines -> College of Science and Health outlines -> Evidence outline outlines -> 2. Act, Omission, Status or Circumstances 4 Consequences and Causation 8 Introduction to Mens Rea and Intent 10 Levels of Fault 11 outlines -> Course Outline as/huma 2650 0A Download 1.08 Mb. Share with your friends:
|