Benedek, “Non-pecuniary Damages: Defined, Assessed and Capped” (1998) 32 R.J.T. 607 at 651-60

Benedek, “Non-pecuniary Damages: Defined, Assessed and Capped” (1998) 32 R.J.T. 607 at 651-60.

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  The definition and subheading of Non-Pecuniary
  
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  Common Law
  
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  Non-pecuniary loss is an intangible loss which is incommensurate with money or lack market value.
  

Present and future physical and mental pain and suffering

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  Subheading:
  

-2. Loss of amenities – the physical disability sustained by victims as a result of accident, and the effect of that disability on the scope of their activities;

-It addresses both the injury itself and its impact on the plt.’s enjoyment of life.

-both past and future anguish over lost amenities.

-3. The loss of expectation of life – a complete loss of pleasure of living during the period the victim would have lived if not for the accident.

-the objective aspect – the loss of life itself.

-the subjective aspect – the anguish experienced in apprehension of that loss.

Case law: SCC Trilogy 1978 – consensus to use functional approach in Cmn Law personal injury suits + rough upper limit 100 000$. Andrews / Thornton / Arnold v. Teno

No material damage.

Includes: sufferance / harm / injury to reputation or honor / phys. deformities / suppression of pleasures / frustrations.

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  Civil debate on objective (Baudouin) vs. subjective (Jutras) approach to compensation
  
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  Subjective: exists only when experienced (no compensation for unconscious victims)
  
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  Objective: compensation is due for objective loss of limb/faculty.
  

Case Law: SCC Que (Public Curator) v. S.N.E. de l’Hôpital St Ferdinand --- support for objective approach in Que. Right to compensation is not conditional of victim’s ability to profit from the $$ compensation. Damages are recognized independent of victim’s awareness of loss.

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  Assessment:
  
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  Nature of damages are at the root of difficulties in assessment because they can’t be compensated solely on basis of restitutio in integrum since court cannot command df to restore victim’s eye for ex. & pain + suffering cannot be erased nor can years be added to a shortened life.
  

In [Lindal v. Lindal], Dickson emphasized that the fact that only a limited application of the principle of restitutio in integrum is possible for non-pecuniary loss.

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  The impossibility of applying the theory of complete restitution as applied in the case of pecuniary damages. This difficulty is just as prevalent in defamation cases.
  

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  Cmn Law approach in Andrews + trilogy:
  
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  Functional approach to compensation – solace through acquisition of goods + services is the aim of compensation. Damages evaluated on basis of sum with which victim can be provided with reasonable solace.
  

In the case of the assessment of non-pecuniary damages, the social burden of the award is a factor to be considered.

SO, in the trilogy cases, the heading of non-pecuniary loss essentially compensate for a single loss, being mental distress, and, adopt a global sum as the method of distributing the award.

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  Guidelines: (1) compensation is based on use it can provide. (2) Likelihood of bettering situation + severity of injuries establish amount. (3) Sum should be modest since victim has already been indemnifies for pecuniary losses + award for non-pecuniary injury is not compensatory in nature.
  

Refined in Lindal (1981) –

-the damage to the victim’s limb or faculties will be claimed in light of the expenses assumed to replace the lost use and pleasure.

-arguments had to be made for loss of expectation of life & age, prospects before injuries + after injuries to be considered.

-based on the functional approach, there will be no award be provided for the unaware plt. b/c no anguish and consequently no need for solace.

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  Theoretical Discussion of Different Approaches to Compensation:
  

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  Criticism to the functional approach in the trilogy cases of SCC
  
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  Despite the adoption of the functional approach in theory, the concrete quantification in the trilogy more closely resembles the conceptual view. B/c the assuming that the severity of the injury was related to the amount of money required to effectively ‘console’ the plt. was to assimilate the conceptual approach and the functional approach.
  
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  There is no indication in the decisions that any thought was actually given to the function or purpose which the award for non-pecuniary damages could fulfill, nor of what the cost would be to provide these services or goods to make the victim’s life more bearable.
  
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  Compatibility of Approaches to Civil Law:
  
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  The concept approach is incompatible with the civil law  there is a depersonalization of the process of evaluation in the sense that no consideration is given to the unique situation of the victim.
  

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  As to the function approach, there was lack of consensus in civil law in Quebec.
  
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  B/c it carries with certain burden, such as
  

-the inequity for some victims in so far as the award is reduced in proportion to the extent to which the injuries restrain the possibility to replace pleasures with those lost

-the absence of an award to the unconscious victim since it cannot be seen as fulfilling a funtion

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  two different views:
  

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  The personal approach corresponds to the ideal of civil liability  it is focus on the situation of the plt., in terms of the injuries he sustained and the consequences they imply for him.
  

CONCLUSION: THE ONLY RULE WHICH EXISTS REGARDING THE ASSEMENT OF NON-PECUNIARY DAMAGES IN CIVIL LAW, IS THAT THE INDIVIDUAL’S LOSS MUST BE COMPENSATED IN A PERSONALIZED FASHION  art. 1611 C.c.Q

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  Unaware victim
  
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  Common law
  
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  The strictly application of the function approach will lead to no award to the unaware victim since such an award cannot be justified.
  
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  Case law:
  

Esson J in his dissenting judgement held that “our inability to predict the future is a good reason for not dealing with the subject in an overly mechanistic and ‘logical’ way.” He specified that the plt. who has suffered the most serious loss has the right, for that sole reason, to some award for non-pecuniary damages.

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  conclusion: in most case, even where there are no sign of cognitive response, a small award for non-pecuniary damages for loss of amenities is provided. But for an award to provide solace, there must be some level of consciousness and might improve.
  
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  Civil law
  
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  Even if the sum awarded cannot provide solace nor satisfaction to the unconscious or mentally handicapped plt., the civil law approach to compensation permits the allocation of non-pecuniary damages in such cases.
  
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  In [Syndicat], L’Heureux-Dube insists that an objective conception of moral prejudice is much more consistent with civil law.
  
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  Upper Limit on Non-Pecuniary Damages in Personal Injury Cases
  
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  Reason: the fear of largely extravagant awards likely to create an immense social burden, and the fact that non-pecuniary damages is an area susceptible to excessive claims, and that victim has already been compensated for pecuniary loss, urge SCC to establish an upper limit for damages in common law personal injury cases.
  
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  The application of the cap: the upper limit should not be exceeded save in exceptional circumstances.
  

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  The compatibility with Civil law
  

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  The reaction to the introduction of the Cap imposed by the SCC
  

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  Defamation --- Not capped Debate:
  
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  Common Law
  
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  In [Hill v. Church], the court held that the cap should not be applied to defamation cases. The reasons: 1) the injury suffered is different; 2) there is no urgent social concern for awards in defamation cases; 3) the cap will mean a maximum penalty for the right to defame.
  
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  In [Botiuk v. Toronto Free Press Publications], the court indicated that “a cap on damages in defamation cases is neither needed nor desirable.” This decision was reaffirmed by the SCC.
  
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  Morse: there is no legitimate ground for the application of the upper limit concept from personal injury awards to moral damage awards in defamation cases, b/c the total pecuniary compensation, upon which the cap is based, does not exist in the case of the awards in libel suits.
  

1. 
   the conduct of the defamer is always considered in the evaluation of the “at large” award;
   
2. 
   the nature of the non-pecuniary damages;
   
3. 
   no foundation for fully compensated pecuniary losses in defamation awards;
   

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  Civil Law
  
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  Argue it is unfair that is not capped because a reputation can be re-established + damage is temporary.
  
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  (Quebec) Snyder Lamer J’s dissent – impose a $50 000 cap b/c:
  

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  Jukier agrees lower compensation should be awarded b/c of factors not found in personal injury: (1) competing interests in defamation – freedom of expression vs protection of privacy. (2) Temporary (3) Alternative remedies for defamed ex. retraction.