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EXTRA-CONTRACTUAL OBLIGATIONS/TORTS 2002-2003 Prof. LARA KHOURY - page 6 / 64

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McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee

In determining non-pecuniary damages, civil law looks at the type of injury, while common law looks at the consequences of the injury. But in practice, both common law and civil law use a mixed approach.

The civil law authority is (a.1607), which talks about “réparation du préjudice”:

bodily

moral

material

The common law authority is the “1978 Trilogy” of Supreme Court cases:

Andrews v. Grand & Toy Alberta Ltd.

Thornton v. Board of School Trustees

Arnold v. Tino

Common law judgements make a distinction between:

pecuniary

non-pecuniary

This has been mandatory since 1978.

Pecuniary damage is equivalent to “material damage” in civil law. in the 1978 trilogy, the SCC divided this into three categories:

material loss (property damage only)

cost of care

lost income (This refers to the difference between the income the victim once had and what the victim can earn now. The court will not look at what the victim used to do with his or her money.)

These calculations are done by actuaries, not lawyers (for details, read Andrews v. Grand & Toy Alberta Ltd.)

Non-pecuniary damage includes:

pain and suffering

loss of amenities (job satisfaction, recreation, capacity to enjoy family life)

disfigurement/aesthetic prejudice

Both common law and civil law assess injuries in concreto, i.e. in terms of their effects on the victim’s life.

Since restitutio in integrum is impossible, should courts award non-pecuniary damages?

If the immediate victim is still alive:

Common law favours a functional approach: The victim must be capable of being provided with solace. Damages cannot make up for what was lost, although they can help buy substitute pleasures.

Historically, common law has been reluctant to assign a dollar value to pain and suffering.

Civil law uses a conceptual approach: The injury must objectively exist.

Civil law has never had a problem with awarding money for bodily or moral injuries.

If the immediate victim is dead:

Both systems require the victim to have been conscious of her suffering before dying.

Both systems calculate the amount of compensation according to three approaches:

conceptual: This approach assigns “objective” value to different kinds of injury.

personal: This approach seeks to subjectively evaluate the victim’s pain and suffering.

functional: This approach accepts that what has been lost cannot be replaced, and awards damages insofar as they can be useful in making the victim’s life more bearable.

These are defined by L’Heureux-Dubé J. in St-Ferdinand.

The functional approach is problematic because:

It can be “cheaper” to kill someone or put them in a coma than to keep them alive.

It can be “cheaper” to injure a mentally disabled person than an able-minded person.

The SCC’s cap on non-pecuniary damages is due to:

recognition of the essential arbitrariness of non-pecuniary damages

fear of U.S. litigiousness.

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