Cass. civ. 1re, 7 June 1989, D. 1991.Somm.323, J.C.P. 1989.IV.294, D. 1991.Jur.158 (Annot. Couturier), D. 1991.Somm.323

Cass. civ. 1re, 7 June 1989, D. 1991.Somm.323, J.C.P. 1989.IV.294, D. 1991.Jur.158 (Annot. Couturier), D. 1991.Somm.323.

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  Patient sues surgeon for not informing her of the need for emergency surgery. Court of appeal awards patient for loss of chance of recovery b/c timely intervention presented reasonable probability of recovery.
  
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  Following decision, patient’s condition worsens. Court of Appeal rejects her demand for more damages.
  

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  Note by J-P Courturier: Necessary link between the loss of chance and the final injury (‘real state’ of patient).
  
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  Loss of chance used whenever causal link cannot be proven. Even though lost chance and actual injury are distinct, independent damages, loss of chance only has legal recourse due to actual injury (lost chance to avoid injury). Thus, lost chance of recovery from medical condition is compensated according to fluctuations that condition.
  

CLASS 10 Remedies (Continued): Assessment of Extra-contractual Damages : Moral Damages

Art. 1457 and 1607 C.c.Q.

Art. 1607: The creditor is entitled to damages for bodily, moral or material injury which is an immediate and direct consequnece of the debtor’s default.

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  the general theory behind moral damages and the particular case of defamation where damages are mainly extra-patrimonial
  
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  distinguish between civil and common law approaches
  

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  What do we mean by moral damages? Generally speaking, these include loss of enjoyment of life, pain and suffering, aesthetic injury, humiliation, ridicule
  
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  the are extra-patrimonial damages because they do not relate to economic activity but more the emotions of individual sufferers
  
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  these are often confused in the jurisprudence
  
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  In St. Ferdinand, L’H-D tries to separate the analysis:
  

1. 
   When is there a right to moral damages?
   
2. 
   How should these damages be quantified?
   

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  Once you pass the hurdle of whether there is a right to moral damages, it comes down to the same three possible approaches:
  

1. 
   conceptual: treats each faculty as a proprietary aspect: losing a finger is worth X, and arm X, it’s a very objective tariff type of system.
   

-Pros: it injects some measure of predictability, it’s easier to insure against loss, may lead to more settlements out of court rather than litigation

-it’s egalitarian in a sense: every one is treated the same, it won’t depend on you ability to testify and look pathetic in court… relieves the burden on the plaintiff to prove how much he or she has suffered

-accords with the civilian goal of compensation

-Cons: no subjective assessment is taken into account when the truth is that my finger is worth less than the finger of a concert pianist

-it the civilian goal is truly compensation, then the award should be variable from one person to the next because it should be compensation for THAT plaintiff’s damages

-the rebuttal to the concert pianist example is that he or she will get more in pecuniary damages for lost income, so that it will balance out. But, from a purely moral point of view, I think the mental anguish the concert pianist will suffer wondering what could have been will also be greater.

Q: What is the relationship between the theory and the actual damages handed out?

-from Benedek: cts (esp Co.L.) are not really using the fnl approach, despite what they say, because they are not trying to estimate the cost of the substitute pleasures. Where is the actual proof that this is what the judges are doing?

-Dickson says as policy should give solace –

-Jukier thinks they are really using a sliding scale/ comparative approach which is closeset to the conceptal approach used by Ci.L.

-most cases take Andrews (quadraplegia) scenario and decide that if that is the worst scenario, then rate against this. This is neither functional or personal approaches – and really not true conceptual approach either.

-just looks at where is fits given gravity of injury. This approach is only possible bc there is a cap (though could compare more generally).

all this means must ask why there is a cap and whether it is a good idea.

2. 
   Personal Approach: Opposite of the conceptual approach, compensated the actual unhappiness or suffering of a particular plaintiff
   

-the question that often arises is what if the fault is the reason you don’t experience moral damages? I.e. if the fault is what renders you mentally incapacitated and thereby you don’t appreciate the mental suffering in the same way as an able-minded person would?

-Jutras is one writer who argues that we should only be compensating for what the victim is actually suffering, otherwise this is not compensation but punishment

-others have argued that you can’t even really measure this anyway: restitutio in integrim for moral damages is an impossibility

3. 
   Functional Approach: this is the approach of the common law, endorsed by the SCC in the Andrew’s Trilogy
   

-it’s indirect compensation by giving the victim some means to secure alternative sources of pleasure to substitute for what was lost

-here’s some money to try to make your now worse life a little better

-you can’t make them walk again, so you try to make their life better by giving them $$

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  both the functional and personal approached would probably have barred recovery in St. Ferdinand
  
• 
  the appellants argued that compensation would have no purpose because the plaintiffs can’t enjoy the money, their mental condition makes it impossible to get solace from the money
  
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  L’H-D rejects this in civil law: she says this common law approach is inconsistent with the civil law, money is to repair the actual loss: it’s not a consolation prize
  

1. 
   The unaware plaintiff: i.e. plaintiff in a coma – civil law would compensate on conceptual approach, common law would not
   
2. 
   When victim dies? If it is possible for the heirs to sue for moral damages, then the functional approach is clearly wrong (money is not giving you solace once you’re dead)
   

-Gonthier in St. Ferdinand says that you have the right to sue if you’re incapacitated, but that should be taken into account in the award of damages

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  Jukier says it’s all so discretionary: damages are at bottom impossible to quantify. Even in common law, it’s not like they enumerate exactly what solace the money is going to buy
  
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  given the discretionary nature of the award, is a cap a good idea?
  

-since pecuniary damages will already have been compensated (i.e. loss of income, medicare costs, etc.) there is little need to allow for huge awards of moral damages

-a cap will lead to predictability and fairness

-the civil law seems to have accepted the cap set out in the Andrew’s trilogy, (about 100,000 indexed to inflation, now probably well over 250,000), but the functional approach adopted in that case was rejected

 The only argument that Jukier likes against a cap (LeTarte in Parizeau) since moral damages are so small, then the cap might be seen as the cost of a licence to defame.