Exceptions to the Trilogy
In a small discussion on Whiten v Pilot within the Dav.NonPec wiki page, Graham mentions that "<...> any non-pecuniary damages would presumably have been capped (if there had been any.)"
I am not sure I fully agree with this. The reason provided for this was that Whiten v Pilot doesn't fall under the listed exceptions to the Trilogy cap. The way I see it, is that Trilogy cap was intended to apply to cases similar in nature to Andrews (i.e. cases with personal injuries). To me, the 3 exceptions are simply historical examples of cases where cap did not apply, but other types of cases are possible.
Although Whiten v Pilot might not be the best example, had there been pain & suffering (not cased by a personal injury, but rather by the insurer's action), I think, non-pecuniary damages would not have been subject to the Trilogy cap. Especially since the Supreme Court main concern seems to be the social cost, which would not apply in this case.
Any thoughts?
Comments
Interesting point. I googled the Trilogy case to remind myself of the details and I found an interesting and very informative recent article about it published July 4, 2019:
The section in the Dav.NonPec wiki article was conjecture on my part so I'm not wedded to the argument I presented. If I'm interpreting your post correctly, you're saying the exceptions to the Trilogy cap were just specific cases and not meant to cover all possible scenarios. So it's possible that more cases could come along in the future that could be added to this list of exceptions. In particular, if there had been non-pecuniary damages in the Whiten v Pilot case, it may also have been an exception to the cap? I suppose that's possible...
I will add a link to your post in the Dav.NonPec wiki article.
Yes, that's how I understood those 3 exceptions. For the purposes of the exam, this discussion is probably irrelevant. They would not ask more than what is stated in the source text. But I think in practice it could be up to the interpretation of lawyers and judges in potential future cases with non-pecuniary damages.