January 2nd, 2013
I have previously discussed the harsh reality that when a person is injured through the intentional, criminal wrongdoing of others they often face a far tougher road to receiving fair compensation for their injuries through the legal system as compared to victims of negligently caused harm. ¬†The reason being that when people are injured through negligence defendants are often insured to pay for the damages. ¬†When people are injured through crime this usually is not the case leaving the victim not only with the legacy of their injuries but with a possible ‘dry judgement’ in the event they sue for damages.
Reasons for judgement were released recently by the BC Supreme Court, Port Alberni Registry, dealing with a criminal assault which made me consider this issue again. ¬†In the recent case (Thornber v. Campbell) the Plaintiff was the victim of a “brutal¬†and unprovoked” assault by the Defendant as the Plaintiff “lay sleeping in his bed“. ¬†The assault caused “multiple facial, head and neck, and jaw contusions…oral/dental injuries including multiple dental fractures…PTSD…(and)¬†recurrence¬†of a previously-suffered Major Depressive Disorder“.
The¬†Defendant¬†was criminally¬†convicted¬†for the assault. ¬†The Plaintiff sued for damages and had his non-pecuniary damages assessed at $125,000. ¬† Notably the Defendant did not participate in the proceeding leading me to the suspect that this Plaintiff may have little more than a dry judgement following this assessment. ¬† If that is the case it is worth repeating my views about whether this issue should be reviewed by the¬†legislature¬†to create a meaningful compensation system for victims of crime who pursue ‘dry’¬†damages¬†through the tort system. ¬†For the sake of convenience here were my previous thoughts:
The law recognizes that those harmed through the fault of others are entitled to reasonable compensation. ¬†When it comes to negligently caused harm defendants are often insured and plaintiffs can collect their judgements.
In cases where Defendants hold inadequate insurance examples can be found where legislatures have intervened to ensure victims can collect on their¬†judgments. ¬†For example, in BC,¬†Section 20 of the Insurance (Vehicle) Act¬†provides a pool of $200,000 of available compensation from ICBC for damages caused by uninsured motorists. ¬†A further example is the¬†requirement for BC motorists to purchase a minimum of one million dollars of¬†under-insured¬†motorist¬†protection coverage.
When plaintiffs suffer harm through intentional torts, however, there often is no insurance to protect the wrongdoer or compensate the victim. ¬†This is an unfair reality in Canadian law. ¬†Victims harmed through assault, battery, sexual molestation and other intentional acts are often faced with dry judgments. ¬†When they seek legal advice they are often turned away being told that litigation may not be worth the effort unless the Defendant has deep pockets
There is no justification I can think of making it fair for a car crash victim to be able to collect their judgement from a pool of money created by the government when the victims of crime are left with dry judgments.
The financial well being of a defendant has no bearing on a victim‚Äôs right to damages. ¬†If the government has seen fit to create a pool of funds for victims of motor vehicle collisions to collect from surely a similar system can be created to allow victims of intentional torts facing dry¬†judgements. ¬†This is a rough idea. ¬†Thoughts and feedback are welcome from lawyers and non-lawyers alike.
Comments and feedback are welcome.