Controlling Nonpecuniary Damages under Personal Injury
I. Introduction to Nonpecuniary Damages
In personal injury law, nonpecuniary damages (also called general damages) refer to compensation for losses that do not have a direct monetary value, unlike pecuniary (economic) damages like lost wages or medical bills. These include:
Pain and suffering
Loss of amenities of life
Loss of enjoyment of life
Emotional distress
Loss of consortium (in some jurisdictions)
These damages are inherently subjective, which makes them more difficult to quantify and regulate, hence the need for judicial and legislative mechanisms to control or limit them.
II. Challenges in Awarding Nonpecuniary Damages
Subjectivity – Since the damages do not have a direct economic value, awards can vary widely from case to case.
Jury discretion – Especially in jury trials, there’s often a risk of inconsistent or excessive awards.
Inflation and unpredictability – Courts aim to maintain fairness and consistency, which is hard when awards are unpredictable.
III. Judicial Control Mechanisms
Courts have developed several judicial techniques to control nonpecuniary damage awards:
1. The "Cap" Approach (Ceiling on Damages)
Some jurisdictions place a judicial or legislative cap on nonpecuniary damages.
Key Case: Andrews v. Grand & Toy Alberta Ltd. (1978), 83 D.L.R. (3d) 452 (SCC)
Supreme Court of Canada imposed a cap of $100,000 (adjusted for inflation) for nonpecuniary damages in personal injury cases.
This case, along with Thornton v. Prince George School District No. 57 and Arnold v. Teno, forms the Canadian trilogy.
Rationale: To ensure uniformity, predictability, and fairness in awards.
2. Standardization and Use of Precedents
Courts often refer to previous case law to determine an appropriate range for nonpecuniary damages.
Example: Kralj v. McGrath [1986] 1 All ER 54 (UK)
The court emphasized the use of previous awards as guidance to maintain consistency in damage awards.
Though judges retain discretion, precedents provide an anchor for their reasoning.
3. Judicial Review of Jury Awards
Appellate courts can intervene when a jury award is “so unreasonable as to be perverse.”
Example: Rookes v. Barnard [1964] AC 1129 (UK)
Although primarily on punitive damages, it illustrates how courts retain oversight over excessive jury awards.
In the U.S., courts apply standards like the "shock the conscience" test to reduce jury awards deemed excessive.
Case Example: Ochoa v. Superior Court (1985) 39 Cal.3d 159 (USA)
Demonstrated how courts can limit emotional distress damages to those within specific relationships (e.g., close family members), thus limiting scope of nonpecuniary damages.
IV. Legislative Controls on Nonpecuniary Damages
Several jurisdictions have passed laws limiting or defining nonpecuniary damages.
1. Statutory Caps
USA (State-level examples):
California Medical Injury Compensation Reform Act (MICRA): Caps nonpecuniary damages in medical malpractice at $250,000.
Many U.S. states have caps for specific torts (e.g., med-mal, wrongful death).
Canada: Cap from Andrews has been respected by the judiciary (though not statutory).
2. Defined Heads of Damage
Statutes may list specific allowable types of nonpecuniary losses, restricting awards to them.
Example: Civil Liability Act 2002 (NSW, Australia)
Introduced a structured approach to calculating damages for non-economic loss using a scale.
A court must determine the severity of loss on a 0-100 scale, and damages are awarded only if impairment is above a threshold (15%).
V. Tort Reform and Nonpecuniary Damages
Tort reform efforts have often focused on limiting nonpecuniary damages to reduce litigation costs and insurance premiums.
Critics argue that this:
Unfairly limits compensation for victims of serious injury.
Disproportionately affects individuals with non-economic injuries (e.g., psychological trauma).
Proponents argue:
It reduces frivolous lawsuits.
Helps in predicting insurance liabilities.
VI. Case Summaries of Interest
| Case | Jurisdiction | Key Point |
|---|---|---|
| Andrews v. Grand & Toy (1978) | Canada | Imposed cap on nonpecuniary damages |
| Kralj v. McGrath (1986) | UK | Use of precedent to guide awards |
| Ochoa v. Superior Court (1985) | USA | Limit emotional distress damages to close relations |
| Rookes v. Barnard (1964) | UK | Judicial review of excessive awards |
| State Farm v. Campbell (2003) | USA | Supreme Court held that awards must be reasonable and proportionate |
VII. Conclusion
Controlling nonpecuniary damages remains a balancing act between ensuring fair compensation and maintaining consistency, predictability, and affordability in the justice system.
Courts and legislatures control these damages through:
Caps (judicial or statutory)
Use of precedent and standard ranges
Judicial oversight of jury awards
Structured legislative frameworks
Despite criticisms, these controls are essential to manage the inherently subjective nature of nonpecuniary losses.
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