Exception to Trilogy cap - negligence causing financial loss

DulcineaDelCA

Hi Graham,

Why is negligence causing financial loss non-pecuniary? Doesn't financial imply it is pecuniary?

In the case of Young v Bella (which I assume is the case for this exception), the poor student suffered tort injury due to negligence on the part of Prof who wrongly accused her of being a child abuser. The plaintiff was suing for:
1. damaged reputation
2. reduced future income-earning capacity due to her inability to complete education as a result of the event

1 is defamation, whilst I think 2 should be quantifiable in money and therefore pecuniary. I would guess that you can take the difference between an average salary of a social worker and that of a high school leaver, multiplied by the number of years the plaintiff can be expected to work, in order calculate the loss of future income.

I cannot find an example in the source paper to which this 3rd exception applies. =S

graham

Everything you said makes sense. I only added this 3rd exception (negligence causing financial loss) because according to the examiner's report for 2018.Spring Question 6b, that was one of the required answers.

Note that this exact question has been asked 4 times prior to 2018.Spring and in each case they only asked for 2 exceptions. If you get this same question on a future exam and they only ask for 2 exceptions, I would list only "sexual abuse" and "defamation". If they ask again for 3 then put the "negligence" reason third, even if you think it's wrong.

The source text does state this as an exception, but there is confusion surrounding this in past examiner's reports.

chrisboersma

Young v Bella

the Director of the School of Social Work, who, without seeking an explanation from the appellant, sent a “suspected ill‑treatment” report to the Child Protection Services (“CPS”). Consequently, unbeknownst to the appellant, the suggestion that she was a suspected child sex abuser was discussed amongst three university professors, communicated to the RCMP, and disclosed to a minimum of ten social workers in several communities, many of whom knew the appellant through her summer employment and one of whom was her boyfriend’s sister. More than two years after the initial report a CPS staff worker belatedly sought a meeting with the appellant where, for the first time, the appellant learned of the long‑standing “report”. She delivered the relevant textbook to CPS the next day. It was immediately obvious to CPS that the appendix had been copied from the textbook listed in the bibliography and was not in the least autobiographical.

exceptions as per text

The three exceptions are discussed in Davidson. They are referring to non-pecuniary damages that are also part of a "negligence causing financial loss" case such as Young v. Bella where,

A jury found the University’s treatment of the appellant to be negligent and further found that as a result of this negligence her chosen career prospects had been destroyed; it awarded $839,400 in damages, including $430,000 in non‑pecuniary damages.

As you can see the non-pecuniary damages exceeded the cap (in a negligence case that was not related to a personal injury case).

You'll also note that in the case:

The respondents’ argument that the appellant’s claim is really an action for defamation, dressed up as a negligence action, must be rejected. The possibility of suing in defamation does not negate the availability of a cause of action in negligence where the necessary elements are made out. [54‑56]

Hence - this is not defamation (although it seems the defense lawyers would've preferred a defamation case give this argument).

And finally, why we are reading it

Nor is the case for imposing a cap in respect of negligence causing economic loss made out here. The issue of whether and in what circumstances a cap applies to non‑pecuniary damage awards outside the catastrophic personal injury context is left open for consideration in another case. [59‑66]

A negligence case has larger potential for damage and fewer defense options. Negligence requires plaintiff to prove:
1. duty of care
2. breach of duty
3. damages

Defamation:

Due to requirements related to free speech - there are several avenues to get out of defamation - as such most lawyers would avoid such case (especially if the case of "duty of care" is involved as was in this case). Defamation cases are very hard to win. There's also the issue of "truth" to be considered here (she can win a negligence case even if the professor was correct: that she was actually abused). A defamation case would've centered around whether or not she WAS abused (they would look for evidence). Whereas a negligence case centers around whether or not there was required "duty of care" (in this case communicating w/ CPS before contacting her directly).

A better example might be if a credit agency (like AM Best) we to publish that insurer B had a "weak" BCAR score, because they incorrectly calculated their earthquake risk. As a result the Insurer had problems getting funds and selling insurance for 12 months. Insurer B could subsequently sue AM Best for negligence. In said case, Insurer B would not have a cap on non-pecuniary damages in said case (for example if insurer B could show they were unreasonable or lazy, or deliberate etc.). In reality any contract with a rating agency will remove the ability to sue for said damages.

DulcineaDelCA

Thank you for pointing out that Young v Bella was tried as a negligence case not defamation (I had the two mixed up in my head somehow). It certainly makes the argument for non-pecuniary damages more plausible.

Speaking of credit rating agencies, I think their contribution to subprime mortgage crisis in 08 would definitely fit the criteria of 'negligence causing financial loss'. It also imposed severe amount of pain and suffering for people whose savings were wiped out, because their pension funds invested in the "very safe", AAA-rated mortgage bonds and CDOs.

Maybe if this thing doesn't work out, we can all switch careers and become lawyers.

graham

Just to point out: negilgence was NOT accepted as an exception in:

• 2017.Fall Q5b
• 2016.Fall Q6b

The examiner's report listed this answer as a "common mistake". But then in 2018.Spring Q6b, they did accept negligence as a valid exception. In fact, you had to list negligence as one of your answers because they asked for 3 items, not just 2.

I don't know what changed in 2018 because that reading has been on the syllabus for a long time.

chrisboersma

That is correct, but unless someone filed a appeal we don't know how they would've scores a "perfectly worded" financial negligence clause. The reference to negligence was an "eg", which suggests it may have been clear, but I suspect the answers here were not specific enough to make it clear it referred to negligence cases not involving bodily injury.

Fall 2017 Q5B Common mistakes included:

• Listing only one instance
• Listing an instance where the cap would apply (e.g., negligence)

Fall 2016 Q6B Common mistakes included:

• Listing an instance where the cap would apply (e.g. negligence)
• Listing only one instance
• Listing two instances, where the second instance was a restatement of the first instance in different words

This is why anyone taking CAS exams should be demanding the "official rubric" be released (vs. sample answers), otherwise the entire appeal process is not truly a open process.