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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 2002 the BC Court of Appeal, in a case called Brisson v. Brisson, decided that juries shouldn\\u2019t 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\\u2019s 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.

Follow this link for links to the cases discussed.