Non-pecuniary damage awards by juries and prior sexual activity cross examination
This week on Legally Speaking with Michael Mulligan:
Non-pecuniary damages are compensation for personal injury losses that have not required the outlay of money. The purpose is to compensate injured people for pain, suffering, disability, inconvenience, and loss of enjoyment of life. They are also referred to as compensation for pain and suffering.
Such damages are distinct from pecuniary damages for things such as lost income, the cost of care or special damages for things like the cost of medication or medical equipment.
In British Columbia, the plaintiff or defendant in a Supreme Court civil case for personal injury can request a jury trial.
In 2002 the BC Court of Appeal, in a case called Brisson v. Brisson, decided that juries shouldn’t be given instructions from the trial judge with respect to what range of non-pecuniary damages should be awarded. The idea was that this should be left for the jury to decide based on the evidence rather than having judges influence this.
When a judge is deciding on the amount of non-pecuniary damages, they would consider how much has been awarded in previous cases to achieve some measure of consistency.
Another factor is that, in 1978, the Supreme Court of Canada, in a series of cases often referred to as the trilogy on damages, capped non-pecuniary damages at $100,000. The purpose of the cap was to reduce the cost of car insurance. The cap has increased in accordance with inflation but remains in place. The maximum amount that can be awarded in catastrophic cases is now approximately $400,000.
Because juries are given no instructions about the cap or what has been awarded in previous cases, it is not uncommon for there to be appeals when a jury award is higher than in similar cases or above the cap.
In the case discussed on the show, a jury awarded a single mother who was injured in a car accident $350,000 in non-pecuniary damages as a result of injuries that persisted for at least ten years, which caused ongoing pain, the loss of ability to physically care for her children or run a daycare business.
On appeal, two of the court of appeal judges hearing the case reduced the award to $250,000. A third judge would have reduced the award to $200,000 while criticizing the lack of guidance provided to the jury.
The public policy question this all raises is who should decide how much compensation is appropriate: juries or judges.
In BC, because of the change to ICBC no-fault insurance, there is no longer any compensation for pain and suffering at all. Someone who is injured would only receive reimbursement for financial losses. Had the injury in the case discussed occurred now, the badly injured mother would have received no compensation other than for her pecuniary losses.
Also, on the show, another split decision from the BC Court of Appeal is discussed. In this case, the court was reviewing a trial judge’s decision in a sexual assault case not to permit evidence about prior sexual activity to be considered.
The case involved a married couple who were in the process of separating after the husband told his wife that he was having an affair. The wife claimed that the husband sexually assaulted her when they were living in separate bedrooms in the home. She told the police that they had engaged in consensual sexual activity the day before the allegation. At trial, she claimed that there had been no sexual activity for two weeks prior to the assault.
One of the Court of Appeal judges found that the accused husband should have been permitted to ask questions about the inconsistency. Two other judges disagreed. As a result of the split decision, the husband will be allowed to appeal to the Supreme Court of Canada.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am. It’s also available on Apple Podcasts or wherever you get your podcasts.
An automated transcript of the show:
Legally Speaking Sep 22, 2022
Adam Stirling [00:00:00] It is time for Legally Speaking. Joined as always by Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. Good morning, Michael. How are we doing?
Michael T. Mulligan [00:00:07] Good morning. I’m doing great.
Adam Stirling [00:00:09] Got some really interesting stories and cases on the docket this week, starting with a jury award for $350,000 in what’s called nonpecuniary damages. What does that mean?
Michael T. Mulligan [00:00:21] Yeah. So, in Canada, the concept of non-pecuniary damages people would often refer to as damages awarded for pain and suffering. Right.
Adam Stirling [00:00:30] Ahh.
Michael T. Mulligan [00:00:30] Things that aren’t like a specific amount for a particular financial loss. And so, for example, in this case, which was a case in Victoria from 2012 and it involved a single mom who was driving her minivan, she was stopped at the time and got backed into by a lumber truck, sadly causing her pretty significant injuries that are continuing till today. Right. She still has soreness and headaches and pain and caused her a host of long-term problems. And so, when there’s an award by a judge or a jury for that sort of thing, and there was no disagreement by the company that owned the truck or the driver, yep, it was their fault, they backed into the back, into the poor woman. There would be compensation provided for things that have a specific dollar value, like how much money did she lose when she couldn’t work? And you know, what were her actual costs for things like, you know, pain medication or crutches or things like that, or even future things like how much is she likely to lose in the future by not being able to work as she could in the past? And so those can be sort of computed as specific losses for particular things. But we also have this concept of non-pecuniary damages, sort of compensation for the pain and suffering and sort of loss of enjoyment of life. Which isn’t really a sort of a you can’t, you know, add up how many missed paycheques you got. And the concept there, of course, is that, you know, you can’t, you know, by dollars, right, fix the fact that somebody might have constant headaches or be in pain every day.
Adam Stirling [00:02:07] Yeah.
Michael T. Mulligan [00:02:08] But the idea would be to try to provide some money to compensate the person in some way to try to make their life a bit better. Right. And that’s sort of a broad principle of fairness. Interestingly, of course, under the of course, but interestingly, under the no fault scheme that we now have in British Columbia, that doesn’t exist at all. So, all somebody would get, like if this accident occurred now, all somebody would get would be what did they lose for work and what did their medication and crutches and so on cost, that would be it. There’d be no longer anything awarded for pain and suffering or non-pecuniary damages. But this particular case involves an interesting issue when you have a jury, deciding what those should be. And in British Columbia, we have a civil jury system, either party can ask to have a jury. And interestingly, the way the law is developed in British Columbia is that when a jury is required to make the decision about how much, if any, should be awarded as non-pecuniary damages or for pain and suffering, that’s up to the jury. And interestingly, the law was developed to the point where neither the lawyers nor the judge can tell the jury what that amount should be.
Adam Stirling [00:03:24] hmm.
Michael T. Mulligan [00:03:24] Or what range of money the jury might consider.
Adam Stirling [00:03:26] Not even the range. Wow,.
Michael T. Mulligan [00:03:28] Not even a range. Can’t even tell the jury, for example, what’s been awarded in previous cases, what might be a starting point here,.
Adam Stirling [00:03:35] wow.
Michael T. Mulligan [00:03:35] Its left entirely to the jury.
Adam Stirling [00:03:37] Hmm.
Michael T. Mulligan [00:03:37] Now, that’s interesting. If you have a judge alone deciding a case, a judge would often look at, well, what was awarded in other similar cases and try to award a similar amount. You know, in the current case right.
Adam Stirling [00:03:50] Yeah.
Michael T. Mulligan [00:03:50] For consistency purposes. But I guess part of the theory, I mean, one of the fundamental philosophical questions there is, you know, are judges somehow superior at deciding what, if anything, should be awarded for that? Or should we trust juries to come up with what they think a fair amount would be based on their assessment? Right. And so here the particular woman who was injured, she had three kids, one of whom had a special needs. She used to run a day-care, but it stopped doing that and couldn’t even physically care for her kids in the same physical way. So, it had real impacts on her and for many years and continuing. And so, the jury awarded her $350,000 in non-pecuniary damages to try to make up for the sort of pain and suffering and impact this had on her life, which was major. It’s clear.
Adam Stirling [00:04:42] Yeah.
Michael T. Mulligan [00:04:43] And then that led to an appeal with the probably the insurance company running it, but nominally the driver and the company that owned the truck appealing the award saying, hey, that’s way too much. And the part of the argument for, hey, that’s way too much. Which comes from a series of Supreme Court of Canada cases that date back to 1978, which are sometimes referred to as the trilogy of cases. And what the Supreme Court of Canada did back in 1978 is that they said, we’re going to cap how much can be awarded in non-pecuniary damages for pain and suffering and they kept it for like car accident cases like this at $100,000 in 1978 dollars.
Adam Stirling [00:05:29] hmm.
Michael T. Mulligan [00:05:29] And they said, well, that could increase for inflation. So now it’s about 400,000.
Adam Stirling [00:05:33] Okay.
Michael T. Mulligan [00:05:33] So the cap that could be awarded is that which the idea would be that would be for the most terrible case. You know, somebody, you know, became a quadriplegic as a result of a car accident and were in pain constantly, or what’s the worst circumstance you could imagine? That’s all they could get for that. That’s the end of it. And so, the argument on appeal was, hey, the jury shouldn’t have given this person $350,000, even though the jury was given no instructions at all about how they should come to a figure. And on an appeal, the argument was sort of, well, let’s look at what other judges did in previous cases. Is this too much? And so, the Court of Appeal had to struggle with that, because you’ve got these competing interests, one interest being sort of, well, there should be consistency in outcomes that’s desirable, I think. But the other argument is, well, shouldn’t there be some deference to the jury? That jury made this decision. They assessed her the assess the impact that had on her. And this was the figure that they came up with. Are judges really better at that then members of the community? Right. That’s kind of what a jury brings, sort of a community value, an assessment to things. And so really, should the Court of Appeal be monkeying, they wouldn’t call it monkeying,.
Adam Stirling [00:06:44] No.
Michael T. Mulligan [00:06:44] they’d be interfering with what the jury decided. Right.
Adam Stirling [00:06:48] Yes.
Michael T. Mulligan [00:06:49] And the law around that the court of appeals developed who said that they should only interfere where the award, and the language is wholly disproportionate or shockingly unreasonable.
Adam Stirling [00:06:59] hmm.
Michael T. Mulligan [00:06:59] And so the Court of Appeals are analyzing it from that perspective is $350,000 for a woman who’s had now a decade of ongoing physical problems, couldn’t care for kids in the same way, had to give up, she had a home day-care. And to give that up still has headaches of pain. Is that wholly disproportionate or shockingly unreasonable. Right, when you’re trying to come up with what amount of money might could have put that right in some broad way to kind of compensate her for those losses in her life, when, after all, that’s what a jury thought was suitable. And so, the Court of Appeal came back with a split decision. Two of the three judges that heard the appeal said that the award should be for that reduced to $250,000. The third judge said, no, that’s not even low enough. It should be $200,000. And the third judge who thought that the award should be lowered even more, spent an interesting period of time analyzing whether there should be some changes to what we’re telling juries. Right. Is it appropriate that we carry on with what we have been doing based on a previous BC Court of Appeal decision, where the judge doesn’t tell the jury anything and the lawyers aren’t allowed to tell the jury anything about the amount. They’re kind of told what these awards are for. And then it’s left up to them to decide. And one of the strategic effects of this and it’s interesting because in this case, it was the defendant who ultimately insisted upon the jury trial. And one of the interesting strategic things that’s happened is if you’re a defendant, which is often, frankly, the insurance company defending somebody. Right. But not you, you never know. One of the strategies can be asked for a jury trial, because if the jury awards a tiny amount of money for non-pecuniary damages. Right, they award, $1,000 or something.
Adam Stirling [00:08:54] Yeah.
Michael T. Mulligan [00:08:55] That can always be defended on the basis of. Well, I guess they didn’t think it was that serious for the person or I guess they didn’t believe them when they said that they were in such pain. Right. But on the other hand, if the jury awards a very large amount of money, you can just go off to the Court of Appeal and say, well, this is wholly disproportionate. This doesn’t line up with these other cases the judges’ awarded damages for. Please reduce.
Adam Stirling [00:09:16] Interesting.
Michael T. Mulligan [00:09:17] And so it can produce this sort of unfairness. Should you have a circumstance where the jury is told nothing, if the award a little bit, the defendant, basically that’s all that’s going to be you because it’s always going to be defended on well, I guess that’s what they thought was fair. But if it’s way too much, the Court of Appeal can bring it down. And so that’s what we’ve got at the moment. And then so I guess that’s another just big question for people to ponder. And then the other big question for people to ponder in addition to, you know, is this a thing that’s best for a jury to decide or should it just be judges making this decision? And are our judges better at it than members of the public? The other big question which the government has kind of answered, at least for the moment, is that they’ve decided this amount should be zero. And so, we no longer provide anything like that at all. And so, if this mum was run over by a lumber truck in 2022, all she would receive would be like her medical expenses and her lost income. That’s it. Nothing could be awarded under no fault for this kind of pain and suffering that this person went through. Well, that’s just too bad. All you’re going to get under no fault would be your medical bills or your, you know, your therapy or whatever, your lost wages could be paid out to you each month.
Adam Stirling [00:10:33] Yeah.
Michael T. Mulligan [00:10:33] And so that’s another philosophical question for people to ask themselves. Is that appropriate? Should we have any compensation for just that impact of harm that’s had on your head on somebody’s life? Is that what fairness requires? Or are we better off just saying no, that’s just not going to be provided because that is part of the reason why you’re paying less for car insurance. It’s because you don’t have any entitlement to that any longer, so you don’t need to collect the money to pay for it. It’s not that simple. It’s not magic. It means that if you get really hurt, nothing will be awarded for that. Any longer in BC. That’s part of why ICBC prices are lower. So, you know, that’s a big public policy question. You know, where should we lie on that? Should it be nothing at all, which is what we’ve got now? Should it be something that juries should be able to decide? Or should it be something which is left up to judges to decide what best it should be? And those are, you know, pretty big questions, along with, I suppose, also that question which we have through the Supreme Court of Canada answered back in 1978 when they capped this, and they capped it in part expressly to reduce insurance costs. Right.
Adam Stirling [00:11:46] huh Wow.
Michael T. Mulligan [00:11:46] Because, again, it’s a public policy.
Adam Stirling [00:11:48] Yeah. Yeah.
Michael T. Mulligan [00:11:48] Well, if that is true, its costs are going way up. Judges and juries are awarding more for pain and suffering. So, we’re just going to stop that. And so that’s that was the law from 1978. And now we’ve gone even further in British Columbia, where we’ve said nothing at all. And so, people should think about that because all of those are legitimate public policy decisions. Right.
Adam Stirling [00:12:08] yeah.
Michael T. Mulligan [00:12:08] You know, the current state of affairs is zero. Well, that’s fair enough. It’ll get you cheaper insurance if you have no cap at all. Insurance prices could go up. Right. But to my mind, at least one of the real values of having a jury decide not only criminal cases, but civil cases is that it brings a community standard to the courtroom.
Adam Stirling [00:12:28] Yes.
Michael T. Mulligan [00:12:29] We should we shouldn’t in the legal system be some sort of insular black box that spits out results and then spits out results consistent with the previous results. I mean, consistency, I guess has some value. But to my mind, it is an important thing that there be civil juries as well as criminal juries, because it does bring the community values to the table to decide those things. And when you’re deciding something like this, which isn’t just a matter of mathematical calculation, we can add up how much money she lost when she wasn’t able to have her day care business anymore.
Adam Stirling [00:13:08] Yeah.
Michael T. Mulligan [00:13:08] Well that’s just adding up receipts, but deciding what, if anything, should the person be given they’re going to make up for all this wrecked your life. Maybe juries are just what you need to do that. Because they would bring their own life experience to it and say, well, what would you just lost your home over it, by the way.
Adam Stirling [00:13:25] Oh.
Michael T. Mulligan [00:13:25] She couldn’t pay your rent, so she had, she couldn’t continue to rent her home. She couldn’t run your day-care. She couldn’t physically take care of her kids as she could before.
Adam Stirling [00:13:33] Awful.
Michael T. Mulligan [00:13:33] So big impacts.
Adam Stirling [00:13:33] Yeah.
Michael T. Mulligan [00:13:34] And so maybe a jury is just exactly what you need, right?
Adam Stirling [00:13:38] Yeah.
Michael T. Mulligan [00:13:38] To decide. Well, what would be fair? What would make up for it? And I’m afraid that we’ve moved, you know, a pretty long way away from that. And we should all think about whether that’s what we want or not, because that’s something which is completely in our control, how that should be handled. And so that’s what we’ve had here. She’s had the award reduced, but she does have something. But as of at least now, there would be nothing. And so, there’s really a wide range of policy there. And that’s where lie in B.C. at the moment.
Adam Stirling [00:14:06] Legally speaking, we’ll continue in just a moment. Michael Mulligan barrister and solicitor with Mulligan Defence Lawyers after this break.
Adam Stirling [00:14:13] Back on the air here at CFAX 1070 as we continue Legally Speaking with Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. What’s next on the agenda for today Michael?
Michael T. Mulligan [00:14:22] Next on the agenda is another split decision out of the BC Court of Appeal that just came out, and it’s a split decision on controversial provisions of the Criminal Code, which in cases of alleged sexual assault, restrict the ability of an accused person to ask any questions about prior activity that might have been engaged in that was consensual. And it came up in this particular case where a was a complainant was a spouse of 26 years, who alleged that after coming back from a trip, her husband told her that he had taken up with another woman and wanted a divorce. And she claims that after living separately in a separate bedroom, that he assaulted her in their home a couple of weeks after coming back from this trip and him telling her about this other woman. The issue it became an issue because when the woman had provided an initial statement to the police, she told them that she had engaged in consensual activity with her husband the night before, what she alleged to have been an assault. However, when she testified in court, she testified to the opposite. She said no, they had been completely separate after they came back from the trip, and she was told by her husband that they were he wanted a divorce. And so, there was this difference in her evidence between what she said to the police and what she said in court. And so, the man’s lawyer wanted to ask her questions about that, to test whether what she was saying was true, because his defence was this just didn’t happen. And she was making it up to either get back at him for cheating on her or because she wanted the house or for some other reason. And so, the lawyer wanted to be able to ask her about these inconsistencies, apparently inconsistent story about what occurred after the trip; and the judge at trial refused to allow that. And so, what it meant was that the man’s lawyer could not ask her any questions about what she said to the police happened, which is an interesting state of affairs, which is usually there’s going to be pretty wide scope for cross-examination to test what somebody’s story is. But we made a policy decision to prevent that from happening, prevent any questions from being asked about asked of a sexual assault complainant about prior activity. And the theory for that, theory behind that is, that past activity doesn’t mean it’s more likely that somebody would have consented, and it doesn’t mean that the person is less likely to be truthful when they’re testifying about something. They don’t want prior activity being used in that way, but it can become more complicated when the argument, like in this case, was not that it made it more likely something was agreed to. It really went to is this person telling the truth. Because they’ve told two different stories, apparently, about what was going on for the period of time prior to this allegation. And so, the man wasn’t allowed to do that, and he was convicted at trial. And so, this case went off to the Court of Appeal. And we have a split decision from the Court of Appeal on whether the trial judge made the right decision in terms of not allowing the man’s lawyer to ask about what the woman told the police had happened. And one of the judges found that the trial judge was in error. And even though there are these protections for not permitting a judge or jury to take into account prior consensual activity, in this case, the one judge found that, no, this wasn’t proper. This would, this kind of questioning went to whether the woman was being truthful about the nature of the relationship. Two of the judges, on the other hand, from the Court of Appeal, disagreed and found that the trial judge had made the right decision and that the man and his lawyer should not have been allowed to ask about what the woman told the police had been going on when she provided her initial statement. And part of that is that the provisions in the criminal code that stop people from being asked about prior activity and stop judges or juries from taking it into account at all, deal with things like a desire to encourage people to make reports, things of this sort, which are issues beyond whether a particular offence might have occurred or not. So, there are these public policy considerations that go into these restrictions on people being allowed to be asked about prior activity. And so, it’s a very interesting sort of split. And one of the things that this will mean, because there is a split in a criminal case like this, where one of the judges thought that the result of the ruling was wrong and would have ordered a new trial is that the person will have a right of appeal to the Supreme Court of Canada. Ordinarily, you need to ask for leave or permission to appeal the case to the Supreme Court of Canada. But when you have a judge dissenting like we had in this case that just came out, it means that the person can go to the Supreme Court of Canada as of right. And so, it will mean that we should have at least some additional insight from the Supreme Court of Canada in terms of how trial judges should be exercising this authority and when is it appropriate to allow cross-examination about prior sexual activity and when should that not be allowed? So, it’s a very interesting case, again, with some really important public policy questions about how should we treat these things and what should be allowed.
Adam Stirling [00:20:17] We have a minute and a half left, Michael, if you’d like to touch on the final story.
Michael T. Mulligan [00:20:23] The final case involves a decision about a person who has a law degree but is not a lawyer. Who has been operating as a legal consultant. And that person had been given permission by the Law Society as part of what’s called a sandbox program, sort of trying out new things to allow him to do some work with people who were disputing traffic tickets. Right.
Adam Stirling [00:20:49] hmm.
Michael T. Mulligan [00:20:49] But despite that or that was the permission he was given. But the person, the legal consultant, was trying to represent somebody who was given a quarantine ticket for refusing to wear a mask.
Adam Stirling [00:21:03] hmm.
Michael T. Mulligan [00:21:03] And so the judge in the case had to decide whether this legal consultant would be permitted to appear in court to argue about the quarantine ticket. And ultimately, the judge concluded that even though this person had been given this permission under the Law Society Sandbox program to do some work with traffic tickets, that did not extend to allowing him to act for people who were dealing with other tickets like this federal quarantine ticket. And so, the result is, no, you cannot hire a legal consultant to do that. It’s also of interest because the law, the provincial government, has floated a proposal to try to expand the range of people that can provide legal services to paralegals and so forth. And so, there’s been some interesting discussion, I think, in the future about who should we allow to provide legal services in terms of what’s really in the public interest. Right.
Adam Stirling [00:22:06] yeah.
Michael T. Mulligan [00:22:06] But on this particular fact pattern, the conclusion was that the legal consultant who was not a lawyer is not going to be permitted to show up as agent, they would call it, to argue about other kinds of tickets. So that’s the last case for today.
Adam Stirling [00:22:21] Very well, Michael Mulligan pleasure, as always. Thank you. Until next week.
Michael T. Mulligan [00:22:23] Thank you so much. Have a great day.
Adam Stirling [00:22:25] All right. Michael Mulligan Barristers solicitor with Mulligan Defence Lawyers during the second half of our second hour every Thursday, Legally Speaking on Ceefax 1070.
Automatically Transcribed on September 26, 2022 – MULLIGAN DEFENCE LAWYERS