Is a defendant's ability to pay out of pocket damages in common law common law?
British Columbia, Canada
The following excerpt is from Kahlon v. Vancouver Coastal Health Authority, 2009 BCSC 922 (CanLII):
As noted in Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229 at 243-244, 83 D.L.R. (3d) 452: An award must be fair to both parties, but the ability of the defendant to pay has never been regarded as a relevant consideration in the assessment of damages at common law. The focus should be on the injuries of the innocent party. Fairness to the other parties is achieved by assuring that the claims raised against him are legitimate and justifiable.
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