Lecture Note: Damages

Damages 4 Types of Judicial Remedies: Damages (grants P a legal right to a specific sum) Injunction (court order that directs party to do, or not do, something) Declaration (formal statement of court to resolve a dispute) Order of Specific Restitution (directs a party to restore pre-existing condition) Classification of Damages: Pecuniary (monetary, no maximum amount ie. lost wages, medical bills, etc.) Non-Pecuniary (pain, humiliation, disfigurement, harder to quantify, maximum amount $350k) 4 types of Damages: 1. NominalàAwarded in a small sum to redress violation of a legal right that law deems worthy of protection, even in absence of actual harm // Based on purpose, not amount // rare this is the only damage sought // Nominal =/= small … Mediana uses example of chair in the study 2. Compensatory à $$$ // To obtain financial redress for actual loss // ALL ITEMS to place injured party in the same position if the injury had never occurred (***Dodd Properties v Canterbury City Council, 1980)à difficult to ascertain in some circumstances Pecuniary (no max) speculative factors, invaluable losses, idle property & includes past/future earnings, past/future expenditures Non-pecuniary (max. $350k) Andrews v Grand & Toy Alberta (1978): Dickson J à “There is no medium of exchange for happiness. There is no market for expectation of life … The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary and conventional.” Hawkins v McGee (1929): skin graft from chest to burnt hand – grew a hairy palm (expectation damages) 3. Aggravated à focus on the victim // a form of compensatory damages awarded to compensate P for additional injuries to dignity and similar feelings arising from conduct of D // 2 requirements: P must establish suffered additional injuries to their feelings and D’s conduct was highly offensive, repugnant, outrageous Rookes v Barnard [1964]: injuries to P’s proper feelings of pride and dignity arising from D’s malice or manner of committing the wrong 4. Punitive à focus on the perpetrator // dual function of punishment (backwards looking) and deterrence (discouraging others in the future) // ONLY CONSIDERED IF compensatory and aggravated damages are insufficient to properly punish D, denounce the conduct, deter repetition Rookes v Barnard [1964]: à court limited punitive damages to oppressive, arbitrary, or unconstitutional conduct by government officials; conduct calculated to make a profit in excess of the likely compensatory damage award; and situations expressly authorized by statute Examples of Punitive Damages as Deterrence: Hill v Church of Scientology & Norberg v Wynrib B(P) v B(W) (1992): P was sexually assaulted by D (father) from ages 5-17 & raped at age 20; Dr. said most traumatized SA victim ever seen (emotionally and socially dysfunctional) à $100k in non-pecuniary general damages / $75k aggravated damages / $50k in punitive damages à repugnant, reprehensible conduct à severe pysch damage à provocation may affect damages (**Ellis v Fallios-Guiterrez) 1 2 3 BC Privacy Act Violation of privacy actionable (1) It is a tort, actionable without proof of damage, for a person, willfully and without a claim of right, to violate the privacy of another. (2) The nature and degree of privacy to which a person is entitled in a situation or in relation to a matter is that which is reasonable in the circumstances, giving due regard to the lawful interests of others. (3) In determining whether the act or conduct of a person is a violation of another's privacy, regard must be given to the nature, incidence and occasion of the act or conduct and to any domestic or other relationship between the parties. (4) Without limiting subsections (1) to (3), privacy may be violated by eavesdropping or surveillance, whether or not accomplished by trespass. Exceptions (2) An act or conduct is not a violation of privacy if any of the following applies: (a) it is consented to by some person entitled to consent; (b) the act or conduct was incidental to the exercise of a lawful right of defence of person or property; (c) the act or conduct was authorized or required under a law in force in British Columbia, by a court or by any process of a court; (d) the act or conduct was that of (i) a peace officer acting in the course of his or her duty to prevent, discover or investigate crime or to discover or apprehend the perpetrators of a crime, or (ii) a public officer engaged in an investigation in the course of his or her duty under a law in force in British Columbia, and was neither disproportionate to the gravity of the crime or matter subject to investigation nor committed in the course of atrespass. (3) A publication of a matter is not a violation of privacy if (a) the matter published was of public interest or was fair comment on a matter of public interest, or (b) the publication was privileged in accordance with the rules of law relating to defamation. (4) Subsection (3) does not extend to any other act or conduct by which the matter published was obtained if that other act or conduct was itself a violation of privacy. Unauthorized use of name or portrait of another (1) In this section, "portrait" means a likeness, still or moving, and includes (a) a likeness of another deliberately disguised to resemble the plaintiff, and (b) a caricature. (2) It is a tort, actionable without proof of damage, for a person to use the name or portrait of another for the purpose of advertising or promoting the sale of, or other trading in, property or services, unless that other, or a person entitled to consent on his or her behalf, consents to the use for that purpose. (3) A person is not liable to another for the use for the purposes stated in subsection (2) of a name identical with, or so similar as to be capable of being mistaken for, that of the other, unless the court is satisfied that (a) the defendant specifically intended to refer to the plaintiff or to exploit his or her name or reputation, or (b) either on the same occasion or on some other occasion in the course of a program of advertisement or promotion, the name was connected, expressly or impliedly, with other material or details sufficient to distinguish the plaintiff, to the public at large or to the members of the community in which he or she lives or works, from others of the same name. 5 (4) A person is not liable to another for the use, for the purposes stated in subsection (2), of his or her portrait in a picture of a group or gathering, unless the plaintiff is (a) identified by name or description, or his or her presence is emphasized, whether by the composition of the picture or otherwise, or (b) recognizable, and the defendant, by using the picture, intended to exploit the plaintiff's name or reputation. (5) Without prejudice to the requirements of any other case, in order to render another liable for using his or her name or portrait for the purposes of advertising or promoting the sale of (a) a newspaper or other publication, or the services of a broadcasting undertaking, the plaintiff must establish that his or her name or portrait was used specifically in connection with material relating to the readership, circulation or other qualities of the newspaper or other publication, or to the audience, services or other qualities of the broadcasting undertaking, as the case may be, and (b) goods or services on account of the use of the name or portrait of the other in a radio or television program relating to current or historical events or affairs, or other matters of public interest, that is sponsored or promoted by or on behalf of the makers, distributors, vendors or suppliers of the goods or services, the plaintiff must establish that his or her name or portrait was used specifically in connection with material relating to the goods or services, or to their manufacturers, distributors, vendors or suppliers. Action does not survive death An action or right of action for a violation of privacy or for the unauthorized use of the name or portrait of another for the purposes stated in this Act is extinguished by the death of the person whose privacy is alleged to have been violated or whose name or portrait is alleged to have been used without authority 17 BC INFANTS ACT Consent of infant to medical treatment (1) In this section: "health care" means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health related purpose, and includes a course of health care; "health care provider" includes a person licensed, certified or registered in British Columbia to provide health care. (2) Subject to subsection (3), an infant may consent to health care whether or not that health care would, in the absence of consent, constitute a trespass to the infant's person, and if an infant provides that consent, the consent is effective and it is not necessary to obtain a consent to the health care from the infant's parent or guardian. (3) A request for or consent, agreement or acquiescence to health care by an infant does not constitute consent to the health care for the purposes of subsection (2) unless the health care provider providing the health care (a) has explained to the infant and has been satisfied that the infant understands (b) the nature and consequences and the reasonably foreseeable benefits and risks of the health care, and (c) has made reasonable efforts to determine and has concluded that the health care is in the infant's best interests. 4 29 BC CHILD, FAMILY AND COMMUNITY SERVICE ACT Child who needs necessary health care (1) If a child or a parent of a child refuses to give consent to health care that, in the opinion of 2 medical practitioners, is necessary to preserve the child's life or to prevent serious or permanent impairment of the child's health, a director may apply to the court for an order under this section. (2) At least 2 days before the date set for hearing the application, notice of the time, date and place of the hearing must be served on (a) each parent, (b) the child, if capable of consenting to health care, and (c) any other person the court directs. (3) If satisfied that the health care is necessary to preserve the child's life or to prevent serious or permanent impairment of the child's health, the court may make an order (a) authorizing the health care, (b) prohibiting any person from obstructing the provision of the health care, (c) requiring a parent or another person to deliver the child to the place where the health care will be provided, and (d) including any other terms, including the duration of the order, that the court considers necessary. (4) In this section, "child" includes a child in care. (5) This section does not limit a director's power to remove the child under section 30 or to take any other steps authorized by this Act to protect the child. Health Care Consent BC HEALTH CARE (CONSENT) AND CARE FACILITY (ADMISSION) ACT 4 Consent rights Every adult who is capable of giving or refusing consent to health care has (a) the right to give consent or to refuse consent on any grounds, including moral or religious grounds, even if the 5 6 7 10 11 refusal will result in death, (b) the right to select a particular form of available health care on any grounds, including moral or religious grounds, (c) the right to revoke consent, (d) the right to expect that a decision to give, refuse or revoke consent will be respected, (e) the right to be involved to the greatest degree possible in all case planning and decision making. General rule — consent needed (1) A health care provider must not provide any health care to an adult without the adult's consent except under sections 11 to 15. (2) A health care provider must not seek a decision about whether to give or refuse substitute consent to health care under section 11, 14 or 15 unless he or she has made every reasonable effort to obtain a decision from the adult. Elements of consent An adult consents to health care if (a) the consent relates to the proposed health care, (b) the consent is given voluntarily, (c) the consent is not obtained by fraud or misrepresentation, (d) the adult is capable of making a decision about whether to give or refuse consent to the proposed health care, (e) the health care provider gives the adult the information a reasonable person would require to understand the proposed health care and to make a decision, including information about (i) the condition for which the health care is proposed, (ii) the nature of the proposed health care, (iii) the risks and benefits of the proposed health care that a reasonable person would expect to be told about, and (iv) alternative courses of health care, and (f) the adult has an opportunity to ask questions and receive answers about the proposed health care. How incapability is determined When deciding whether an adult is incapable of giving, refusing or revoking consent to health care, a health care provider must base the decision on whether or not the adult demonstrates that he or she understands (a) the information given by the health care provider under section 6 (e), and (b) that the information applies to the situation of the adult for whom the health care is proposed Same rules apply to substitute consent Sections 6, 7, 8 (a) and 9 apply when a decision about whether to give or refuse substitute consent is sought or made under section 11, 14 or 15. Exception — if a substitute decision maker, guardian or representative consents A health care provider may provide health care to an adult without the adult's consent if (a) the health care provider is of the opinion that the adult needs the health care and is incapable of giving or refusing consent, and (b) the adult's personal guardian or representative (i) has authority to consent to the health care, (ii) is capable of giving consent, and (iii) gives substitute consent. 12 Exception — urgent or emergency health care (1) A health care provider may provide health care to an adult without the adult's consent if (a) it is necessary to provide the health care without delay in order to preserve the adult's life, to prevent serious physical or mental harm or to alleviate severe pain, (b) the adult is apparently impaired by drugs or alcohol or is unconscious or semi conscious for any reason or is, in the health care provider's opinion, otherwise incapable of giving or refusing consent, (c) the adult does not have a personal guardian or representative who is authorized to consent to the health care, is capable of doing so and is available, (d) where practicable, a second health care provider confirms the first health care provider's opinion about the need for the health care and the incapability. (2) For the purpose of this section, a personal guardian or representative is available if it is possible for the health care provider, within a time that is reasonable in the circumstances, (a) to determine whether the adult has a personal guardian or representative, (b) to communicate with the adult's personal guardian or representative. (3) If a personal guardian or representative becomes available or a person is chosen under section 16 after a health care provider provides health care to an adult under this section, the personal guardian, representative or person chosen under section 16 may refuse consent for continued health care, and, if consent is refused, the health care must be withdrawn. 33.1 Collection of personal information A health care provider is authorized to collect personal information about an adult from any person if this is necessary for the purposes of exercising a power or carrying out a duty or function under this Act