Having just returned to town (more about that in a later post), I've just caught up on the latest posts. Moin's post on the Morrow v. Zheng decision striking down the minor injury regulation capping non-pecuniary damages at $4000 caught my eye.
What is ironic (although not necessarily wrong, at least for the purposes of this post) about this decision is that, while the Alberta Legislature's cap on minor injuries is gone (pending appeal), the judicially-imposed cap on catastrophic injuries (in Andrews) - a much bigger sop to the insurance industry - is still in place.
The Court party (and the plaintiff's bar) might reply that the Andrews cap does not discriminate on the basis of disability, and I think that is a coherent argument: people with less-than-catastrophic injuries receive lower awards based upon some mental calculation that judges make as well as upon comparisons with awards given in similar or as-close-as-possible-to-similar cases. So, while the current value of the Andrews cap amount of (based upon the current value of $100,000 in 1979) somewhere between $315,000 and $335,000 (depending upon which economist you ask) would be awarded to the sentient quadriplegic, a severely burned plaintiff might receive $180,000 in non-pecuniary damages in BC (considerably less in Alberta), a plaintiff with a broken kneecap (that necessitated multiple surgeries) might receive $80,000 in BC (probably around $45,000 in Alberta) and a plaintiff with cuts, abrasions, bruising and moderate whiplash might receive $35,000 in BC (and again some lesser amount in Alberta).
In other words, the Andrews cap (unlike Alberta's cap) applies to limit the non-pecuniary loss of every injured plaintiff. As such, while perhaps a notorious example of judges engaging in legislative policy-making, it is constitutional (albeit in the limited sense that it doesn't violate section 15 of the Charter.)
If this is in fact the distinction that preserves the Andrews cap's constitutionality, the British Columbia Court of Appeal might want to take note. In recent years, it has launched a campaign of sorts to subvert the Andrews cap by suggesting on a few occasions in obiter that it only applies to catastrophically injured plaintiffs, and not to people with more minor injuries. Ignoring for a moment the perverse logic (in theory, a person with a scraped pinky could receive more in non-pecuniary damages than a quadriplegic breathing through a tube), wouldn't this mean that the Andrews cap singles out a particular form of disability for unequal treatment? Let's hope Finch CJBC reads Morrow v. Zheng.
I don't know whether this will, as the insurance industry, Premier Stelmach and Moin all suggest, result in increased premiums, although it is hard to imagine how it won't. To the extent that the absence of a cap was costing insurers prior to its adoption, then of course such costs had to, and will have to, be passed on to somebody, and policyholders seem the most likely group to bear them. Of course, the converse point is that it's not obvious to me why the true cost of non-pecuniary loss (I realize that's an oxymoron, but that's how we deal with non-pecuniary loss, right?) to an innocent plaintiff resulting from a blameworthy defendant's negligence ought to be borne by the innocent plaintiff, as opposed to the blameworthy defendant (aka the defendant's insurer). But that, of course, goes to the Legislature's decision to adopt the cap, not to the Court's competence to strike it down.
One last point: insurers in Alberta should take a page from ICBC's book and start using civil juries as a matter of course in these minor injury cases. Every time. (Every time the plaintiff claims for $75,000 or more, that is, so that the streamlined (no jury) procedures don't come into play.) While (as Moin knows from our joint work in this area) empirical evidence of jury verdicts is extremely difficult to obtain and compile, there is LOTS of anecdotal evidence, particularly from BC and Ontario, suggesting that jurors will typically award very little (much less than $4000, in fact) for the kinds of injuries that the Alberta cap covered. Of course, they often award more than the Andrews cap (say $450,000 or $550,000 or $700,000) when the plaintiff is breathing through a tube and staring at a ceiling for the rest of his/her life. Then the appellate courts ratchet the award down to the cap. (Apparently, appellate judges have forgotten that damages are a question of fact. And yes, I realize that Sopinka J. said that the Andrews cap is a matter of law, not fact. But calling a fish a "bicycle" doesn't make it so.) Perhaps, however, juries are telling our judges two things about damages: (1) they are awarding WAY too much for the ordinary bumps and bruises that we run the risk of incurring just by getting up in the morning (a useful ancient maxim on this point is stercus accidit); and (2) $300,000-plus is not enough to buy the "solace" that Dickson J. identified in Andrews as the goal of non-pecuniary damages.
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