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GENERAL DAMAGES
trilogy challenge denied
In 1978, the Supreme Court of Canada in the famous trilogy of cases imposed a rough upper limit on non-pecuniary general damage awards. Recently, the trilogy has survived yet another attempt to have the limit re-examined. On October 16, 2006, leave to appeal was refused in the two British Columbia personal injury cases of Lee v. Dawson and Stapley v. Hejslet. Robert Sinclair examines the decisions in both cases and speculates as to the possible reasons why the Supreme Court declined leave to appeal. Is the refusal of leave to appeal an endorsement of the status quo and an affirmation of the rough upper limit or is it that the Supreme Court awaits an appeal case that better defines the issues to provide a more effective opportunity to provide a comprehensive set of new guidelines for non-pecuniary general damage awards?
PUNITIVE DAMAGES
punishment for impaired driving
The Ontario Court of Appeal in McIntyre v. Grigg recently established the first Canadian precedent for awarding punitive damages in a case where the plaintiff was injured by an impaired driver. This case will clearly change the scope of when and how punitive damages are awarded in cases involving impaired drivers. Kevin Ross and Sonia Fabiani review this landmark decision of the Ontario Court of Appeal noting the Court’s careful analysis of the principles for awarding punitive damages and the implications for insurers and insureds.
DAMAGES CAPS
psychological injuries uncertainty remains
The first judicial challenge to New Brunswick’s Injury Regulation under the Insurance Act did not address the impact of the regulation capping general damages on psychological injuries. In Rossignol v. Rubidge, the plaintiff sustained a fracture of his right fibula and tibula that required surgical intervention but healed completely within 6 to 8 months. The plaintiff alleged he suffered from post-traumatic stress disorder (“PTSD”). The defendant denied that the plaintiff’s psychological difficulties were related to the accident. Justice Russell accepted the defendant’s position that the plaintiff did not suffer from PTSD and further held that the plaintiff did not suffer a permanent serious impairment of any bodily function. Nadia MacPhee summarizes the decision and comments on the question of whether in a proper case a New Brunswick court will find that psychological injuries are subject to the prescribed limit on general damages regardless of the extent and effect of those injuries. |