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How do you pick a number for non-pecuniary damages?
-Judges pick an arbitrary number that they feel is appropriate
-Damages are awarded based on present circumstances (i.e. not based on possible cures,
possible job loss, etc)
-Numbers a lot higher in the United States than in Canada
-Money based on principles of law as presently established
“No fault insurance”: a no-fault insurer gives you financial support while waiting for trial
Purpose of damages in negligence/tort law: to put the plaintiff in a situation similar to what they were
before the incident; to compensate
Case Study: Andrews vs. Grand and Toy
-21 year old man in accident where he suffered injuries crippling him for life; court deemed
him almost entirely disabled, still has all mental function
-Andrews won a significant award at trial, but defendant appealed to the court on the basis that
the plaintiff could receive hospital care at a significantly lower cost than home care.
-Appellant court agreed that home care would be much better for the plaintiff, but since it is
the choice of the respondent to live in his own home it is considered a “luxury”, not a
-Damages are calculated based on established loss. Can not base damages based on what he
could do with it (i.e. trip to Vegas?)
-Insurance proceeds are available, so financial sources are not an issue
-“Is it reasonable to be compensated to be put in a position that the plaintiff would enjoy?”
(i.e. home care)
-On the appeal, Andrew’s award was reduced from $4000 a month to $1000.
Contingencies: things that may or may not happen that might save the defendant money (i.e. plaintiff
might die early), and so reduce the damages by a percentage; arbitrary
-Original damages were accepted, and the plaintiff was allowed the $4000 to live in his home,
but contingencies were still allowed
Non Pecuniary Damages
-Conceptual approach: “a thumb is worth $500…” etc
-Personal approach: taking a person’s situation into account “a trumpet player would suffer
more from a lost thumb, so they get more money…”
-Money is not meant to replace happiness, but is meant to provide solace for the person
suffering the loss
-Cap in Canada today set around $200-220 thousand for pain and suffering
Duty to Rescue
-Do you have an obligation to help someone in danger? …No.
-The law imposes no legal obligation on you to rescue someone in danger, unless you have a
relationship with someone where you are responsible for them
-You could put yourself in peril when you step in to help
-If a rescue is commenced, you are not obliged to continue that rescue unless there is a special
relationship between you and that person, where the law requires you to do something.
-If the would-be rescuer is negligent when they rescue, and makes the victim’s situation worse
than it would have been without help, then you could be liable
-Liability to a would-be rescuer: if you put yourself in a situation of peril negligently, you are
liable for any injury your rescuer sustains in trying to help you, unless your rescuer shows a
wonton reckless disregard for safety
Good Samaritan Act: If you step in to help someone in peril, you are protected so that you can not be
sued unless your conduct is grossly negligible
Case Study: Matthews vs. Maclauren
-Matthews fell off boat, Hoarsley jumps in to save him, but dies because the water is so cold,
he has a heart attack. Mrs. Jones also jumps in to help, but survives.
-Maclauren is the owner of the boat, reverses the boat to try to help them. He has a duty of
care to rescue anyone that is in peril as a result of his boat. He is found negligent because he
backed up the boat causing Hoarsley to jump in as a result of the situation.
-Hoarsley is a forseeable plaintiff because Maclauren was negligent in his method of rescue.