Rethinking Damages for Personal Injury: Is it Too Late to Take the Facts Seriously?

Abstract

It is just a little over thirty years since the Supreme Court of Canada took Canada’s assessment of personal injury damages on a different tack in the trilogy. In hindsight, the view then taken on damages for non-pecuniary loss was prescient, for it foreshadowed movements now taken legislatively in the United States and Australia, and has parallels in the English Court of Appeal decision in Heil v. Rankin. The Supreme Court did not tackle the issue of lump sum verses periodic payment/reassessment in the trilogy, although it did express its views on this issue many years later. For obvious constitutional and jurisprudential reasons touching on the appropriate limits of judicial activism, and, one suspects, out of personal belief, the Supreme Court did not question the underlying premise of providing compensation for personal injury as a result of tortious conduct. The success of the Supreme Court’s intervention is perhaps best revealed by the fact that apart from some minor skirmishes over automobile insurance, there has never been any real clamour in Canada for tort reform, or an insurance crisis similar to the experience in the United States and Australia.

Three questions were posed to me by the organizers in preparing this paper: Is it time to rethink personal injury damages?; the cap on pain and suffering?; and lump sum awards? To these questions I answer yes, no, and maybe. On these three questions it is probably fair to state that there is now little public interest in the first, the second has generated some degree of passion, and the third is seen as a non-starter despite its obvious merit. I will approach them seriatim.

Keywords: Justice, legal remedies, law, Canadian, Canada, CIAJ, ICAJ, Canadian Institute for the Administration of Justice, Institut canadien d’administration de la justice