Below is a brief article which was first published yesterday at Slaw.ca, one of Canada’s best read and most recognized legal blogs. For your convenience I republish the article here in its entirety. If you find this topic of interest I suggest you visit the original article and weigh in on the comments that follow.
I’ve written many times that the phrase tort ‘reform‘ is often used in association with efforts to strip the rights of injury claimants. Reform, however, is a neutral concept in and of itself. Reform simply means change and the change could be for better or worse. With this in mind I’d like to share a tort reform idea for the better which recently crossed my mind. In short the idea is to add a pool of liquidity to rectify the injustice of dry judgement.
The thought crossed my mind as I was reading reasons for judgement released this week by the BC Supreme Court, New Westminster Registry. In this week’s case (Saether v. Irvine) the Plaintiff was injured when the Defendant battered him. The consequences were “profound and catastrophic” causing a brain injury that “severely compromised (the plaintiff) in virtually all facets of his life“. Damages of $1,075,000 were assessed to cover the Plaintiff’s anticipated future care costs alone. Given the fact that this case involves an intentional tort it is a safe bet that this judgement will be uninsured and likely (at least partially) dry.
Reading this reminded me of a 2005 case (Chow v. Hiscock) where the Court expressly recognized the injustice of dry judgement facing a plaintiff left “in a permanent semi-vegatative state” following a “brutal, unprovoked assault“. The Plaintiff’s future care costs were anticipated to exceed $4,000,000. Madam Justice Koensberg made the following comments hoping the Plaintiff would some day be able to receive some of these funds from the uninsured defendants:
 Can I say that this is still a case where punitive damages should be awarded? If I were to award punitive damages, it would be purely symbolic. I have heard nothing which indicates that the magnitude of this award or even some small part of it is likely to be payable by any of these three young men. One can hope that they find a straight path to earn a significant amount of money or that one even wins the lottery, so that the earnings could be available to increase Mr. Johnson’s quality of life.
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’s 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 judgments. This is a rough idea. Thoughts and feedback are welcome from lawyers and non-lawyers alike.