What are punitive damages?

Punitive damages don’t play a major role in damages assessments in most Canadian cases, but many people are curious about them from popular media.  Canadian damages tend to be focused on compensating the injured person so that they are made “whole” again.  In other words, using money to make their life as close as possible to how it would have been without the injury.

Punitive damages, on the other hand, are awards made to punish the person or organisation that is found responsible for the injury.  Another purpose of punitive damages is to prevent or deter others from doing the same thing in the future by making it very expensive and by showing that there is a great social distain for the behaviour.  So punitive damages also serve to denounce certain misconduct.

These purposes go above and beyond holding the defendant responsible.  Generally, in order for punitive damages to even be considered there needs to be some real malicious, mean, or vindictive behaviour on the part of the defendant.  Most court cases don’t have this, so we don’t often see punitive damages come up.  When they do arise, it’s usually in cases of intentional actions rather than ones for negligence.

One case where punitive damages were awarded is called Norberg v Wynrib, [1992] 2 SCR, 1992 CanLII 65 (SCC).  In this case, a doctor with a drug addicted patient was found to have been demanding sexual favours from her in exchange for painkillers. Punitive damages were awarded because the behaviour is absolutely reprehensible and called for strong denunciation and deterrence.

What are aggravated damages?

A related category of damages is called “aggravated damages.”  These are also not very common.  Aggravated damages are to compensate an injured person for the extra emotional harm caused by the reprehensible or outrageous conduct of the defendant.  So, for these damages to be awarded, the behaviour, attitude or circumstances of what the defendant did needs to have caused additional harm.  This includes harm such as indignity and humiliation.  For example, a number of sexual assault cases have included aggravated damages.

Aggravated damages are often calculated as part of general, non-pecuniary damages instead of on their own as a separate category.

Punitive damages and aggravated damages don’t make their way into BC personal injury claims

Why would we publish this article if these types of damages are rarely part of injury claims?  Because it’s quite widespread in the USA and in the media and therefore people are curious whether punitive and/or aggravated damages have any place in BC personal injury claims.