What are Punitives Damages?
I recently presented a paper on this topic for the Trial Lawyers Association of British Columbia entitled “Punitive Damages in Negligence Claims: Practical Considerations.” I thought it might also be helpful to non-lawyers (including clients) to have an overview of what punitive damages are and how they are assessed.
Punitive damages are a special kind of damages in personal injury lawsuits. While the majority of damages that accident victims receive are compensatory, meaning they are awards of money intended to compensate the injured victim for their losses, there are occasions where punitive damages are also awarded. Punitive damages are unique in the sense that they have nothing to do with the plaintiff’s losses, but focus instead on the egregious conduct of the defendant.
In short, punitive damages are awarded to punish and deter the wrongdoer and are, in essence, a civil fine for outrageous behavior.
Punitive Damages Are Rare
Punitive damage awards are somewhat rare in negligence claims generally and are extremely rare in the context of Motor Vehicle Accident claims. Given the Supreme Court of Canada’s observations that punitive damage awards are the “means by which the Judge or jury express their outrage at the egregious conduct of the defendant,” it is somewhat surprising that so few punitive damage claims are successfully brought against impaired or reckless drivers, for example.
The Basics of Punitive Damages
Punitive damages have been part of the common law for hundreds of years. In the last few decades, the SCC has repeatedly confirmed and approved the use of punitive damage awards in Canada. Currently, the leading decision in this area is Whiten v. Pilot where Justice Binnie laid out the following principles:
- Punitive damages are awarded against a defendant in exceptional cases for malicious, oppressive and high handed conduct that offends the court’s sense of decency
- The general objectives of punitive damages are punishment (in the sense of retribution), deterrence of the wrongdoer and others, and denunciation (the means by which the jury or judge expresses its outrage at the egregious conduct)
- The primary vehicle for punishment is the criminal law and punitive damages should be exceptional
- If punishment has been imposed by a criminal court, the judge or jury is to treat that as another fact, albeit an important one
- A court should award the lowest amount that would rationally achieve the objects of punitive damage. A court should relate the facts of a particular case to the underlying purpose of punitive damages and ask itself how, in particular, an award would further one or more of the objectives of the law
- It is rational for a court to use punitive damages to relieve profits
- Formulaic approaches such as ratios or caps are not helpful
- If and only if all other damages are insufficient to meet the objectives, shall punitive damages be awarded
How Punitive Damages are Assessed
Justice Binnie also noted the damages must be
(1) Proportionate to the blameworthiness of the defendant’s conduct – the more reprehensible the higher the award;
(2) Levels of blameworthiness will be influenced by many factors such as:
- Whether misconduct was planned or deliberate
- The intent and motive of the defendant
- Whether conduct persisted over a lengthy period of time
- Whether the defendant attempted to conceal or cover up misconduct
- The defendant’s awareness of the wrong
- Whether the Defendant profited from the misconduct
- Whether the interest violated was deeply personal to the plaintiff
- Proportionate to the degree of vulnerability of the plaintiff
- The financial or other vulnerability of the plaintiff and the consequent abuse of power is highly relevant where there is power imbalance
(3) Proportionate to the harm or potential harm directed specifically at the plaintiff
(4) Proportionate to the need for deterrence
(5) Proportionate, after taking into account other awards and criminal fines and penalties
(6) Proportionate to the advantage wrongfully gained by a defendant from the misconduct
Punitive Damages For Impaired or Reckless Driving In BC
There have been few cases which have considered punitive damages awards for reckless or impaired driving. In BC the courts that have looked at these claims have ultimately denied them. However, given that these pre-date Whiten, and subsequent appellate authority from Ontario, it is arguable whether they are still “good law”.
Although the current law in BC would prevent most claims for punitive damages in the motor vehicle context, it is likely that the law in our jurisdiction is outdated. Punitive damage claims do not require the wrongful act be specifically directed at the Plaintiff and while criminal punishment will be a significant factor, it is not an absolute bar to bringing a successful claim against a defendant. In theory, a claim for punitive damages against an impaired driver is sustainable as drinking and driving shows a wanton disregard for the health and safety of the public and punitive damages would meet the objectives of punishment, deterrence and condemnation.
If you’ve been injured in a Motor Vehicle Accident, contact a lawyer at Murphy Battista for more information.