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damages for mental distress canada

In contrast, aggravated and punitive damages in bad faith claims have not been limited by the courts. Non-pecuniary damages were meant to provide a substitute for loss of amenities and to make the plaintiff’s life more bearable. The professor reported her suspicions to a number of authorities and community figures but was later discovered to be wrong in her finding. Introduction If someone were to complain of mental distress due to breach of contract, the response might well be “cry me a river.” In the 19th century, the implied covenant of good faith and fair dealing arose in the United States as part of contract law. In the 1981 Supreme Court of Canada decision of Lindal v. Lindal ([1981] S.C.J. Finally, the plaintiff was said to have misapprehended the reason behind the upper limit, which was to prevent excessive awards and the societal consequences stemming from them. We will discover how the rule has been treated in subsequent cases and predict how it will likely fare in the future. In Quach v.Mitrux Services Ltd., 2020 BCCA 25 (Quach), the British Columbia Court of Appeal overturned the trial court's decision to award aggravated damages to an individual whose job was terminated before his employment began because the manner of dismissal did not cause the requisite "mental distress. Similarly, a case involving a loss of reputation resulted in $430,000 in non-pecuniary damages being awarded (Young v. Bella, 2006 SCC 3 [Young]). The “exceptional circumstances” phrase gave an opportunity for particular cases to ignore the upper limit as we have seen with the defamation, loss of reputation, and sexual assault cases. 4312 (Ont. 79 at p. 29 [ter Neuzen]). For now, however, the decision of the Saskatchewan Court of Queen’s Bench is not binding on other provincial courts in Canada. The $100,000 upper limit was again imposed in Arnold. The Supreme Court of Canada has held: “Damages are a monetary payment awarded for the invasion of a right at common law”. 146). Only time will tell whether the Canadian courts will limit the maximum amount of punitive and aggravated damages awarded in the future. Her husband claimed loss of consortium. The Supreme Court of Canada stated at page 17: The [defendants] have not established why the policy considerations which arise from negligence causing catastrophic personal injuries, in the context of accident and medical malpractice, should be extended to cap a jury award in a case such as the present. Many other jurisdictions around the world seek to compensate a victim from loss arising from pain and suffering. Diane Teno, the four year old plaintiff, was crossing the road with her brother when she was struck by a vehicle driven by the defendant Brian Arnold. A cap is not needed to protect the general public from a serious social burden, such as enormous insurance premiums. The courts recognize emotional distress as a type of damage that can be recovered through a civil lawsuit. She is also Vice Chair of DRI International for the Defense Research Institute. The courts are beginning to respond by awarding increasingly higher damages under this heading. Emotional or psychological injuries that could give rise to a claim for compensation include: Anxiety and stress. In addition, victims of defamation were not limited by the cap but victims of negligence, as was the case in Lee, were limited. Until the year 2000, the highest amount awarded was $20,000 (Evans v. Crown Life Insurance (1996) 37 C.C.L.I. In awarding punitive damages, the Court found that the claims examiner’s rejection of the Own Occupation coverage was severely flawed, as it imported improper considerations and concluded without any foundation that motivational factors were dominating the claim. It is in this area that awards in the United States have soared to dramatically high levels in recent years. In 2003, Lee v. Dawson, 2003 BCSC 1012 attempted to challenge the upper limits of non-pecuniary damages. Following the Whiten decision, the number of bad faith claims made against insurers has increased but the punitive damage awards remain conservative. In addition to the contractual obligation to pay the claim, insurers have a distinct and separate obligation to deal with its policyholders in good faith. The Court concluded that the mental distress suffered by the plaintiff as a result of the delay in the payment of Any Occupation benefits was sufficient to warrant compensation for mental distress. The jury in the Ontario Supreme Court awarded $1 million in punitive damages, which was lowered to $100,000 by the Ontario Court of Appeal. 216). (1996), 78 B.C.A.C. Mental anguish lawsuits seek damages for the pain and suffering resulting from another person’s negligent or intentional conduct. Levy and Monty Verlint on. Next Post →. 2014.09.18 //. In Arnold v. Teno, [1978] 2 S.C.R. Intentional torts are those—like battery, trespass, or intentional infliction of emotional distress—that a person intends to commit. In the seminal case of Bardal v. 209 (BCCA) at para. If you have suffered emotional distress, you are entitled to compensation for your distress and the physical and mental injuries suffered. Aggravated damages cover intangible injuries such as mental distress, pain, anguish, grief, anxiety, vexation, humiliation, indignation, outrage, wounded pride, damaged self-confidence or self esteem, loss of faith in friends or colleagues, and other similar matters. Action justified the large aggravated damages award by stating that had: AIG made the monthly payments on a regular and timely basis as required under the policy there would in all likelihood not have been the significant amount of mental distress which has virtually destroyed Branco’s life over the last 13 years (Branco at para. 287 (SCC) [Arnold]) (the “Trilogy”). The presence of these attributes provided the potential for an increasingly substantial and excessive amount of damages to be awarded. Fidler v. Sun Life Assurance Co. of Canada – Supreme Court of Canada – June 29, 2006 An employee is only able to recover damages for mental distress due to the breach of a contract if it can be shown that such damages were within the reasonable contemplation of the parties at the time the contract was formed.. Juries have awarded punitive damages as high as $2.5 million, but this award was later overturned by the appeal court (see Plester v. Wawanesa Insurance, [2006] O.J. 108 (SCC)), it was agreed upon that the $100,000 cap would be adjusted at the rate of inflation to determine the upper limit at the time of trial. Had the insurance company been responsible for the entirety of the plaintiff’s psychiatric symptoms, an appropriate award would have been approximately $70,000 to $80,000. can i sue for emotional distress in Canada? Dog bites; and 5. All this would change when the Supreme Court of Canada released a judgment awarding $1 million in punitive damages in a first party bad faith insurance case (Whiten v. Pilot Insurance Co., 2002 SCC 18 [Whiten]). Although not a Supreme Court of Canada case, the British Columbia Court of Appeal refused to impose the cap on damages for civil sexual assault cases (S.Y. Mr. Justice Spence noted that part of the exercise undertaken was a social and economic attempt to prevent runaway insurance premiums: The very real and serious social burden of these exorbitant awards has been illustrated graphically in the United States in cases concerning medical malpractice. The Supreme Court of Canada in Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. Given the inconsistencies in the diagnoses between the medical reports, it was necessary for the claims examiner to ensure that the medical consultant had fairly reviewed the medical reports submitted by the plaintiff to the insurance company. 595, 2002 SCC 18 [Whiten] explained the role of punitive damages in bad faith claims: An award of punitive damages in a contract case, though rare, is obtainable. As a breach of the duty of good faith is a separate actionable wrong, it is not dependent on the claim for coverage or compensation under the insurance policy. 263-264). The claims examiner repeatedly failed to analyze and to weigh the evidence before her, and applied a test for disability that went beyond the Total Disability definition set out in the insurance policy. Employees who are wrongfully dismissed may be entitled to damages for mental distress if they can show that the manner of dismissal caused them mental distress that was in the contemplation of the parties. As we have seen, the $100,000 upper limit on non-pecuniary damages imposed in 1978 remains a “rule of law” and is predicted to continue well into the future. The amounts awarded would instead be considered additional money to help the plaintiff in making his or her life more endurable. The Supreme Court of Canada restored the $1 million award having found that the insurer attempted to take advantage of the plaintiff’s financial difficulties, its superior resources, and bargaining power to obtain a favourable settlement. Justice Acton, a judge on the Saskatchewan Court of Queen’s Bench, handed down punitive damages totaling $4.5 million and aggravated damages of $450,000 against two insurance companies (Branco v. American Home Assurance Company, 2013 SKQB 98 [Branco]). The BCSC trial Judge concluded that the Defendant did terminate the Plaintiff’s employment wrongfully, and the Plaintiff was also successful in a claim for aggravated damages (for mental distress) in the sum of $30,000. The History and Treatment of Damages in Canada, Patricia J. Armstrong Patricia Armstrong practices civil litigation, exclusively as insurance defence counsel. Since the Trilogy, the Supreme Court of Canada has exempted the application of the upper limit cap in particular types of cases. Traditionally, contractual damages were awarded for … In Canada, aggravated damages are awarded to compensate a party for the mental distress experienced from another party’s misconduct or misbehaviour. In most cases and states, suing for emotional distress damages must be done in conjunction with a physical injury lawsuit, as opposed to emotional distress that was not caused by an injury or accident. Damages for Mental Distress in Employment Law Cases after Keays v. Honda Canada Inc. The court reasoned that the plaintiff suffered substantially more pain than the plaintiffs in the trilogy cases and thus qualified as an exceptional circumstance. From the above cases, it is clear that the court considers the social implications of a high damage award when deciding whether to apply the cap. The plaintiff appealed the decision to the BC Court of Appeal (Lee v. Dawson, [2006] B.C.J. 287 (SCC) [Arnold], the plaintiff was a similarly young individual who suffered a catastrophic injury, albeit with different injuries. No. Justice Acton showed an immense amount of disapproval for the actions of the two insurance companies. The plaintiff argued that less injured persons who fell below the upper limit would be entitled to full compensation, whereas catastrophically injured persons would be limited by the cap imposed by the trilogy. It requires an “actionable wrong” in addition to the breach of contract. A decision by an insurer to refuse payment should be based on a reasonable interpretation of its obligations under the policy (Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30). The decision not to follow a ratio for determining punitive damages opens the door for much higher punitive damage awards in the future. Doe claimed damages from Etihad for physical injury, emotional distress, and mental anguish. The purpose of an award of damages in a wrongful dismissal action is to compensate. Bell Mobility was found vicariously liable for the torts committed by Ayotte. Evidence Required for Claims of Mental Distress. The insurer made a single payment of $5,000 to the insured for living expenses under the policy but refused to provide further coverage on suspicions of arson. The awarding of non-pecuniary damages in a civil action is by no means unique to Canada. As a general rule, damages will not be awarded to compensate for the mental distress or emotional trauma that may be caused by a breach of contract. No. (2nd) 61 (BCSC)). A case that came before the Ontario Superior Court of Justice highlights the need for appellants to bring evidence of actual mental distress when seeking aggravated damages. (3rd) 16 (Ont. The more devastating the loss, the more the insured may be at the financial mercy of the insurer, and the more difficult it may be to challenge a wrongful refusal to pay the claim. The family doctor estimated that the plaintiff might be ready to return to gainful employment in 6 months. At the time, he was working for a subsidiary of Cameco Corp., a Saskatchewan-based company. Beginning in 1989, a Canadian court for the first time awarded punitive damages against a property insurer in a first party case in the modest amount of $10,000 (Labelle v. Guardian Insurance (1989) 38 C.C.L.I. Given that the calculation of non-pecuniary damages is not an exact science, the Supreme Court of Canada feared that an escalation of these damages would arise from the case law and would subsequently be followed in the future. Damages may be awarded in other headings to provide equality in the amount of compensation a plaintiff receives in a negligence case. Such damages may arise where the employer attacks the employee’s reputation, misrepresents the reason for the dismissal, or terminates the employee to deprive them of a particular right, such as … 46). 679 (BCCA)) with the main argument being that the upper limit violated Section 15 of the Canadian Charter of Rights and Freedoms (the right to equality). Here, the Court found that the defendant insurance company had failed to assess the plaintiff’s Own Occupation and Any Occupation claims in a fair and balanced manner and that these failures went beyond mere errors of judgment or misunderstandings. When initiating a proceeding regarding a denial of LTD benefits, you should discuss the possibility of seeking punitive or mental distress damages with a disability benefits lawyer. You may also be able to recover punitive damages against your abuser as in two cases discussed above: $10,000 in … In suitable cases, courts can award these damages. See our article: “Frequently Asked Questions regarding Canada Pension Plan Benefits”. The duty of good faith has since been adopted by Canada and continues to be imposed in contracts, especially those between an insured individual and an insurance company. The law of damages in Canada has undergone unique changes over the past 50 years which have helped shape the actions of Canadian society. Non-pecuniary damages were not, in the direct sense, compensatory in nature as no amount of money can replace the pain and suffering of the plaintiff. The plaintiff suffered severe brain damage resulting in physical and mental impairment. Currently, the range for punitive damages in Canada is between $50,000 to $1 million. S.C.J. In citing the Supreme Court of Canada Fidler decision[2], which sets out the rationale for mental distress damages caused by breach of a disability insurance policy, the Court awarded mental distress damages of $30,000 and another $30,000 for punitive damages. Economic damages include loss of property, inability to work, impact on professional abilities, and more. A tort claim is a legal claim for damages caused by the wrongful act (or tort) of another person. The cap established for non-pecuniary damages, adjusted for inflation, is currently near $360,000, but only for the most severe cases. However, Fenn was an exceptional circumstance in its own regard. In the British Columbia Supreme Court, a jury awarded $2,000,000 to a 15 year old who suffered a traumatic brain injury, severe depression, stunted psychological growth and permanent facial scarring from a motor vehicle accident. The exception to this rule is in cases where the purpose of the contract was to offer “peace of mind” such as a vacation holiday package or an insurance contract. Moreover, the claims examiner failed to note the serious discrepancies between the IME and the plaintiff’s treating therapists and physicians. In provinces such as British Columbia, the highest award has only been $35,000 (Asselstine v. Manulife, 2005 BCCA 292). We will review the history behind bad faith claims in Canada and analyze the current amounts which Canadian courts have been awarding for punitive and aggravated damages. In Whiten, the plaintiff and his family sought insurance coverage after the plaintiff’s house completely burned down on a cold winter night in Ontario. Most cases, however, fall within the $100,000 to $200,000 range (see Clarfield v. Crown Life (2000), 23 C.C.L.I. Mental Distress and Punitive Damages In citing the Supreme Court of Canada Fidler decision, which sets out the rationale for mental distress damages caused by breach of a disability insurance policy, the Court awarded mental distress damages of $30,000 and another $30,000 for punitive damages. It must not deny coverage or delay payment in order to take advantage of the insured’s economic vulnerability or to gain bargaining leverage in negotiating a settlement. With respect to non-pecuniary damages, the Supreme Court of Canada, Canada’s highest court, implemented a series of rulings in the late 1970s which affected the way non-pecuniary damages were awarded. On January 19, 1978, the Supreme Court of Canada tackled this issue head-on by ruling on a trilogy of cases to limit the maximum amount of non-pecuniary damages a plaintiff could receive in a civil action (Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 217 (Nfld. The plaintiff suffered severenervous shock and emotional distress when he witnessed his wife and three children caught in a fire and explosion which destroyed their house. In Quach v. Mitrux Services Ltd., 2020 BCCA 25 (Quach), the British Columbia Court of Appeal overturned the trial court’s decision to award aggravated damages to an individual whose job was terminated before his … Canada: Case Brief: On Punitive And Mental Distress Damages For Harassment In 2012, we reported on an Ontario jury award of approximately $1.5 million damages to a 42-year-old former assistant manager who resigned her employment at Wal-Mart after being verbally abused and … The fire department, police, and independent adjusters retained by the insurer concluding that it was an accidental fire. In making a decision to refuse payment of a claim, an insurer must assess the merits of a claim in a balanced and reasonable manner. Nonetheless, the insurer held on to its arson theory and relied on the help of an aggressive and confrontational legal counsel. He awarded punitive damages of $1.5 million and aggravated damages of $150,000 against AIG, and punitive and aggravated damages of $3 million and $300,000 respectively against Zurich. The Court found that the claims examiner denial of benefits was severely flawed as “she was looking for reasons to deny coverage, even to the point of manufacturing reasons, rather than trying to find a basis in the evidence for paying the claim”. Justice Acton believed the $1 million award in Whiten was not sufficient to capture the attention of the insurance industry and hoped a larger award would help them “recognize the destruction and devastation that their actions cause in failing to honour their contractual policy commitments to the individuals insured” (Branco at para. [This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]. The amount and availability of such damages is subject to the upper limit for such an award established by the Supreme Court of Canada in 1978. 1130 (SCC) [Hill]). S.C.J. Canada. 229 (SCC) [Andrews]; Thornton v. School District No. The court further justified the award by reasoning that, due to inflation, the same monetary value was worth less than at the time of the trilogy. 170-76. Therefore, an individual may be awarded punitive damages even if the court rules that the insured is not entitled to any form of coverage (seeSaskatchewan Government Insurance v. Wilson, 2012 SKCA 106). What is the Process of Suing For Emotional Distress Canada? Category: Canada Law. A breach of the duty of good faith may result in an award of punitive and/or aggravated damages. Currently, the typical range for aggravated damages in Canada is $10,000 to $100,000 but most of the awards fall on the lower end of the spectrum. The Supreme Court of Canada noted that: Insurance contracts are sold by the insurance industry and purchased by members of the public for peace of mind. On the other hand, if the damages are upheld in the Court of Appeal and Supreme Court of Canada, the ripple effect of a higher ceiling for punitive and aggravated damages would be felt throughout the country. The claims examiner denied the plaintiff’s claim on the basis that her condition was not severe enough to cause significant and prolonged psychiatric impairments, despite the fact that the phrase “significant and prolonged psychiatric impairment” is not found in the definition of Total Disability set out in the insurance policy. The psychiatrist found that the plaintiff’s symptoms might include more occupational (issues with her employer) and motivational factors than a severe and limiting psychiatric impairment. The trial judge lowered the jury award to the upper limit as suggested under ter Neuzen, which amounted to $294,000 after it was adjusted for inflation. Their purpose is not to compensate the plaintiff, but to give the defendant his or her just dessert (retribution), to deter the defendant and others from similar misconduct in the future (deterrence), and to mark the community’s collective condemnation (denunciation) of what has happened (Hill v. Church of Scientology). Claims examiners are required to weigh the totality of the medical evidence against the insurance policy requirements; A claims examiner cannot deny coverage on the basis of a test, such as “significant and prolonged impairment”, if such a test is not found in the definition of Total Disability set out in the insurance policy; A delay in payment of a disability claim may be sufficient to warrant mental distress compensation. The cap established for all non-pecuniary damages, which is periodically adjusted to account for inflation, is currently near $360,000. Walker v. Hulse, Playfair and McGarry 2017 ONSC 358 involved an appeal of a decision from small claims court. The role of punitive and aggravated damages has been particularly important in the context of bad faith claims made against insurance companies. This argument was rejected in relation to damages for defamation in Hill v. Church of Scientology at paras. On the other hand, a recent 2013 Ontario case awarded $100,000 in aggravated damages on a disability insurance claim (Fernandes v. Penncorp Life Insurance Company, 2013 ONSC 1637). As explained by Mr. Justice Dickson: The sheer fact is that there is no objective yardstick for translating non-pecuniary losses, such as pain and suffering and loss of amenities, into monetary terms. These situations created inequality which breached Charter values and rights. The rulings have had longstanding social implications. As a general principle in Canada, damages for mental distress resulting from a breach of contract are not normally awarded. As the numbers currently stand in Canada, the upper limit for non-pecuniary damages is approximately $360,000. In 1995, the $100,000 upper limit was further solidified when Justice Sopinka, writing for the Supreme Court of Canada, stated that the upper limit was to be a “rule of law” (ter Neuzen v. Korn, [1995] S.C.J. ter Neuzen’s “rule of law”judgment most likely contributed to the dearth of awards exceeding the upper limit due to the “exceptional circumstances” of the plaintiff. Depression. No other provincial appellate court or Supreme Court of Canada decision since Fenn has upheld an award of non-pecuniary damages above the trilogy’s upper limit cap because the plaintiff experienced more pain and suffering than the plaintiffs in the trilogy cases. One such case where the cap did not apply involved injuries resulting from the defamation of a lawyer by the Church of Scientology (Hill v. Church of Scientology, [1995] 2 S.C.R. Mental anguish damages are usually connected to cases involving wrongful death, disfigurement or serious bodily injury that led to profound sadness and distress for the injured individual. As of the writing of this paper in April 2014, the upper limit is calculated to be approximately $360,000. The range for aggravated damages is between $10,000 and $100,000, and the range for punitive damages is between $50,000 and $1 million. In ter Neuzen, a jury awarded $460,000 in non-pecuniary damages. ← Previous Post Generally, punitive damages are imposed in rare circumstances where there has been high-handed, malicious, arbitrary or highly reprehensible misconduct that departs markedly from ordinary standards of decent behaviour. The landmark decision determined conclusively that evidence of a “recognized psychiatric injury” is no longer required to substantiate an award of … In the judgment of Andrews, Mr. Justice Dickson explained that non-pecuniary damages were difficult to quantify and did not rely on an objective measure. This area is open to widely extravagant claims. can i sue for emotional distress in Canada. In Canada, the factors which are analyzed to determine an appropriate award are: 1) the plaintiff’s age, 2) the nature of the injury, 3) the severity and duration of the pain, 4) the level of the disability, and 5) the loss of lifestyle or impairment of life (Stapley v. Hejslet, 2006 BCCA 34 at para. Non-economic damages are psychological and can’t be quantified. ), Fidler v. Sunlife, 2004 BCCA 273, Fernandes v. Penncorp Life Insurance Company, 2013 ONSC 1637). The obligation of good faith dealing means that the insured’s peace of mind should be the insurer’s objective, and the insured’s vulnerability ought not to be aggravated as a negotiating tactic. An example of the inflation adjustment can be seen in a 2012 British Columbia Supreme Court case, where the judge noted at the time that the upper limit for non-pecuniary damages in Canada for negligently caused injuries was just over $342,000 (Clost v. Relkie, 2012 BCSC 1393). Notwithstanding the striking of the award of damages for negligent and intentional infliction of mental distress, the court awarded damages for Ayotte’s assault and battery in the amount of $15,000.00, and for mental distress in the amount of $45,000.00. 2139 (Ont. The Law Commission defines aggravated damages as ‘damages awarded for a tort as compensation for the plaintiff's mental distress, where the manner in which the defendant has committed the tort, or his motives in so doing, or his conduct subsequent … If there is no evidence to indicate that society would suffer an economic burden from the award, such as an increase in insurance premiums, the upper limit cap appears not to apply. By Rhonda B. C.A.)). the employee for breach of the implied term of the employment contract to provide reasonable notice of termination. Emotional distress is a type of mental suffering or anguish induced by an incident of either negligence or through intent. Unintentional torts, which are more common, occur when a person injures another through negligence. Clearly, damages for emotional distress and mental suffering remain a distinct possibility in Ontario family law. As no Supreme Court of Canada case has ruled on aggravated damages in bad faith claims, the damages are specific to the provinces and vary in range. The court’s fear was partially grounded on the developing landscape of non-pecuniary damage awards in the United States. We have a right to fear a situation where none but the wealthy could own or drive automobiles because none but the wealthy could afford to pay the enormous insurance premiums which would be required by insurers to meet such exorbitant awards (Arnold at p. 28). In Canada, aggravated damages are awarded to compensate a party for the mental distress experienced from another party’s misconduct or misbehaviour. Not surprisingly, the insurers in Branco have appealed the case to the Saskatchewan Court of Appeal. Notably, the Court held that had the insurance company’s conduct only marginally aggravated the plaintiff’s symptoms. Fall within the realm of punitive and/or aggravated damages Exempted the application of the Navy EEOC! Excessive burden of expense is greatest ( Andrews at p. 29 [ ter,! Exceptional circumstances ” over the past 50 years which have helped shape the actions of the of! Distress damages in a 2013 insurance case from Saskatchewan Sunlife, 2004 BCCA,! His foot conducted an independent Medical Evaluation ( IME ) Assurance Co. ( 2002 ), 27 C.C.L.I enormous premiums! Context in which bad faith claims fall within the realm of punitive and/or aggravated damages are awarded to a. Following the Whiten decision, the upper limit was again imposed in Arnold v. Teno [! To Canada her Life more endurable interest: non-pecuniary, punitive, and more significance of decision... Realm of punitive and aggravated damages was recently challenged in a Long-Term Disability ( LTD ) claim ” of distress—that. Grounded on the developing landscape of non-pecuniary damage awards in the Trilogy cases and thus qualified as exceptional. Trilogy cases and thus qualified as an exceptional circumstance in its own regard lawyer awarded! Of damage that can be recovered through a civil lawsuit chastain v. U.S. ’! Around the world seek to compensate a victim from loss arising from pain suffering. Punitive damages in a negligence case v. Chubb ( 2001 ), N.J. No, 27 C.C.L.I Process Suing. Entitled to compensation for your distress and mental distress experienced from another party ’ treating... Circumstances ” the defendant ’ s strategy had also been known and approved by middle and senior.! Adjusted for inflation, is currently near $ 360,000, but only for the torts committed by.. 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