COVID-19: Is the Cure “Worse Than the Problem Itself”?

Contributed by Phil Lord

Republicans have argued that the measures taken to slow the spread of COVID-19 will create economic consequences too serious to justify the number of lives saved. Are they right? We do the math.

The lieutenant governor of Texas Dan Patrick believes older people would rather put their lives at risk than cause a shutdown which will affect the economy. In an interview with Tucker Carlson, he stated:

Let’s get back to work. Let’s get back to living. Let’s be smart about it.

[…]

 And those of us who are 70 plus, we’ll take care of ourselves. But don’t sacrifice the country.

Patrick’s comments echo those of President Donald Trump, who stated:

We can’t have the cure be worse than the problem

[…]

We have to open our country because that causes problems that, in my opinion, could be far bigger problems.

Are they right? Continue reading “COVID-19: Is the Cure “Worse Than the Problem Itself”?”

Popping the Cap

Contributed by Phil Lord

Over 40 years ago, our Supreme Court set an “upper limit” on the amounts which can be awarded as compensation for the non-pecuniary component of a bodily injury.1 Pecuniary damages are those which can easily be quantified, such as lost wages. In contrast, non-pecuniary damages, such as pain and suffering, are not financial in nature. The upper limit on non-pecuniary damages is now an effective cap. While the interpretation of the principles first set out by the Court has evolved, the cap has enjoyed a surprising and unusual stability, even as our society has changed. The cap devalues the suffering of personal injury victims and has no theoretical underpinning. I want to preliminarily set out here my thoughts on the cap, how it is understood by our courts, and the arguments which could lead to its abolition. I look forward to further elaborating on these thoughts in a future article.

In the late 1970s, the Supreme Court heard three cases involving very serious bodily injuries: Arnold v Teno, Thornton v School Dist No 57 (Prince George) et al and Andrews v Grand & Toy Alberta Ltd. The judgments were rendered on the same day.2 In Andrews, a unanimous Court states that “the appropriate award in the case of a young adult quadriplegic like Andrews [is] the amount of $100,000” and that “[s]ave in exceptional cir­cumstances, this should be regarded as an upper limit of non-pecuniary loss in cases of this nature.”3 Considering the seriousness of the victims’ injuries, the intimation was that few, if any, injuries would justify a higher award. Continue reading “Popping the Cap”