In Harder v. Poettcker, the Plaintiff was injured in a motor vehicle accident in a parking lot, and consequently sued for damages. Liability was not admitted by ICBC’S lawyer. The trial proceeded by judge and jury, with the jury awarding $5,100.00 in total damages, but this only constituted “special damages” (out of pocket expenses), which included loss of housekeeping capacity. No provision was made for “non-pecuniary damages” (the injury component of an ICBC claim).

 

After the jury finding the Plaintiff to be 85% at fault for the accident, the resulting award was under $1,000.00.

 

After delivery of the verdict, ICBC’S lawyer applied for judgment in accordance with the verdict, however counsel for the Plaintiff, citing the Court of Appeal decision in Balla, and relying on Rule 12-6(7) of the Supreme Court Civil Rules opposed the application on the basis that answers given to questions posed to the jury were conflicting, and that, as a result, the action must be retried.

 

The trial judge ordered a new trial, ruling that it was inconsistent to award money for out of pocket expenses, yet not award any money for non-pecuniary damages for the Plaintiff’s injuries, which made the incurring of the out of pocket expenses necessary. The trial judge ordered that the new trial be before himself, with no jury, as he was already familiar with all the evidence, and it would be more expeditious than to wait a lengthy amount of time for a new trial by judge and jury.

 

[17] Notwithstanding the importance of attempting to enforce a jury’s verdict and the fact that even apart from the 85% contributory negligence award against the plaintiff, the award was at best either very modest or nil, I am driven to conclude that to award nothing for non-pecuniary damages but award $1,200 for special damages is an inconsistent verdict.

 

[18] Although a possible rationalization of the award is that the jury intended to award the plaintiff say $400 for non-pecuniary damages but rounded it down in accordance with my instructions to zero, I reject that. I find the jury intended to award nothing for non-pecuniary damages. Even if the jury intended to award only a nominal amount for non-pecuniary damages, I think that would still create an inconsistent verdict: see Le v. Luz, 2003 BCCA 640.

 

[19] I also reject the submission that the jury verdict could properly be interpreted to mean that they intended to award something for non-pecuniary damages under a pecuniary heading.

 

[20] Although the defendant argues forcefully that there was coherence and consistency in the jury verdict, I respectfully disagree. I find that the jury award, although small from the plaintiff’s perspective, is inconsistent and judgment cannot be entered on the defendant’s motion.

In Han v. Park, the Plaintiff was injured in a motor vehicle accident, and consequently made an ICBC claim for several heads of damages, including pain and suffering, loss of income, and diminished earning capacity. Liability was admitted by ICBC’S lawyer. A 14 day jury trial ensued, with the jury awarding $51,300.00 in non-pecuniary damages, but rejecting the Plaintiff’s claims for wage loss and diminished earning capacity. The Plaintiff appealed on many grounds, including that the trial justice erred in admitting the Defendant’s book of documents containing irrelevant and prejudicial records and documents, and that the trial justice also erred in leaving the jury with a portion of the Plaintiff’s Examination for Discovery. The Court of Appeal allowed the Plaintiff’s appeal on both these grounds, arguing that the admission of the book of documents, and the use of a portion of the Examination for Discovery, both led to a substantial wrong or miscarriage of justice. A new trial was ordered.

 

[34]        I agree with the appellant that like Owimar, the inclusion of some of the clinical records and material contained in the Exhibit had the effect of portraying the appellant as a difficult, manipulating, and stubborn individual. As appellant’s counsel states, this portrayal shifted the focus of the jury to the appellant’s negative character traits, rather than to the main issues of the trial.

 

[35]        The respondents’ trial counsel assured the judge all the documents in the Exhibit would be referred to in the cross-examination of Ms. Han but they were not. Some of the documents were irrelevant, some were prejudicial, and some were inflammatory. The Exhibit was marked outside the presence of the jury – the trier of fact – which is an irregularity. There was no document agreement in place, so the basis for the appellant’s consent to the admission of the Exhibit is not clear. Even with consent, the trial judge is always the gatekeeper.

 

[36]        In my view, the Exhibit should not have been admitted en masse. Some of the documents and records should not have been admitted at all, as their admission was highly prejudicial and resulted in a substantial wrong or miscarriage of justice.[

 

[37]        On this ground alone, it is in the interests of justice to order a new trial.

 

[39]        I agree with the appellant there was a significant risk that the jury would give greater weight to the transcribed portions than to the appellant’s testimony since there was no transcript of her answers given in evidence in response. The judge’s instruction to the jury that the transcript was an aide memoir did not overcome the resulting prejudice to the appellant resulting from the jury having only one side of the picture during their deliberations.

 

[40]         This procedure was highly irregular and prejudicial to the appellant, resulting in a substantial wrong or miscarriage of justice.

If a Plaintiff or Defendant are not satisfied with the decision of a jury in the Supreme Court, they have the right to appeal the decision to the Court of Appeal. The general test that the Court of Appeal will consider is whether there was any evidence on which a properly instructed jury could make the findings it did.

 

In Li v. Newson, the Plaintiff was injured as a cyclist when struck by a motor vehicle at an intersection. The Plaintiff initiated an ICBC claim for several heads of damages, including pain and suffering, loss of income, diminished earning capacity, and cost of future care. At trial, the jury found the Defendant to be 75% at fault for the accident, and awarded substantial damages for diminished earning capacity, as well as an award for cost of future care. ICBC’S lawyer appealed, arguing that the Plaintiff did not prove fault on behalf of the Defendant, and that the awards for diminished earning capacity and cost of future care were too high. Although allowing the appeal with respect to the cost of future care, and awarding nothing for this, the Court dismissed the appeals with respect to liability and diminished earning capacity, ruling that the jury did indeed have evidence on which to make the findings as they did.

 

[8]           What is clear is that on all the evidence it was open to the jury to find that the plaintiff was well into the intersection when the defendant entered on the green light, and that the defendant was passing stopped or slowing traffic to his left.

 

[9]           The defendant’s factum is replete with references to some of the evidence favourable to the defence case.  However, the issue as to liability must be decided on the basis of whether there was any evidence on which a properly instructed jury could make the findings it did.  In my view there is no doubt that there was such evidence.

 

[10]        Counsel for the defendant has not identified any error in the charge by the judge on the issue of liability.  In my respectful view, that part of the charge fully and fairly explains the applicable principles and legal rules to be applied.

 

[11]        There is no basis on which this Court could interfere with the jury’s finding of negligence on the part of the defendant, or on its apportionment of fault.  The appeal as framed by counsel for the defendant is essentially an invitation for this Court to retry the facts, which of course we may not do.

In Walker v. Doe,  the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages. In closing submissions to the jury with respect to the issues of wage loss and cost of future care, counsel for the Plaintiff sought to use non-exhibit visual aids, which the Court permitted.

 

[19] Counsel for the plaintiff proposes, in his closing submissions, to: (a) develop a bar graph or time line that explains the period of time that each of past wage loss, future wage loss, and the other heads of damage being claimed cover; and (b) visually depict how a future wage loss claim or future care claim should be calculated from the relevant tables that are found in the Civil Jury Instructions.

 

[32] In line with MacKenzie A.C.J.S.C.’s reasons in Basi, I have reviewed both Watt’s Manual of Criminal Jury Instructions and the CJC’s model jury instructions. Both seem to confirm that charts or summaries can be used during a closing to help illustrate or explain the evidence, even if they are not made exhibits at trial.

 

[35] In this case, subject to the comments I am about to make, I am satisfied that counsel for the plaintiff can proceed as he wishes. The intended use of the “demonstrative aids” that he has described is modest, finite, and would assist the jury in understanding the issues that are before them. This is also consistent with the guidance provided in each of Bengert, Fimognairi and Basi. Still further, my instructions will contain a caution confirming that neither the time line nor the calculations constitute “evidence” before the jury.

In Evans v Metcalfe, the Jury awarded a mere $1,000 for pain and suffering in an ICBC claim, an amount described as “shockingly unreasonable” by the trial judge. The British Columbia Court of Appeal set aside the jury verdict, and ordered a new trial.

 

[5] I infer the jury did not take an entirely benign view of the evidence of either the plaintiff or certain of her treating physicians. The plaintiff sought substantial awards under a number of heads including past wage loss, special damages, loss of capacity and damages for pain and suffering, the latter often referred to as non-pecuniary damages. As occurred in the recent case of Cahoon v. Brideaux, [2010] B.C.J. No. 853, there was a vast gulf between what the appellant sought by way of compensation and what the jury awarded.

 

[6] The jury awarded $6,000 for special damages and $10,300 for past loss of income, the latter award being ordered reduced by 15% for failure to mitigate. On a Motion for Judgment, the learned trial judge set aside the mitigation disposition as being without any evidential foundation. The jury awarded the appellant non-pecuniary damages of $1,000. In the result, the total amount of damages awarded totalled $17,300.

 

[9] In the present case, there was a body of medical evidence that did not depend on the veracity or reliability of the appellant plaintiff or her primary treating physician that was supportive of the thesis that she continued to suffer from the sequelae of the April 2006 accident throughout 2006 into the early months of 2007. As I earlier noted, the quantum of the awards made by the jury under the heads of past income loss and special damages are reasonably susceptible of the interpretation that the jury made a factual decision that the effects of the accident did persist for about nine months post-accident.

 

[10] In my respectful opinion, these findings of the jury as reflected in their pecuniary awards make the award for non-pecuniary damages very anomalous. It is not impossible that the jury may have taken a quite censorious view of the appellant because of her economic circumstances or because of her conduct in importuning the physician to give her a note in aid of possible financial advantage. These would not be judicious reasons for denying her an appropriate award of non-pecuniary damages. As I observed, there was a body of credible evidence that would support an award under this head significantly greater than the amount awarded at trial. While there can be considerable variance in awards made under this head as the cases cited to us demonstrate, this award seems almost derisory.

 

[11] Generally this Court must be very restrained in any interference with a jury disposition as a consistent body of precedent makes plain. However, I have been persuaded that this is one of those rare cases where the interests of justice make intervention appropriate. The degree of anomaly in the respective awards, coupled with a very real possibility of the triers of fact taking an unduly severe view of the appellant’s conduct unrelated to her physical condition persuade me that the award made by the jury for non-pecuniary damages cannot stand.

 

[12] We were invited by counsel for the appellant to either fix awards under various heads ourselves, or refer the matter to the trial judge for assessment. The latter course does not commend itself to me for two reasons:  the judge has previously expressed certain fairly strong preliminary views and it is of course the right of the defendant respondent to choose the forum of a jury if so minded. As to the possible remedy of this Court adjusting upward awards made by the jury, this is very much dependent on factual issues, including particularly issues of credibility. Historically this Court has been properly reluctant to engage in factual determinations in this class of matter. In my view, the only appropriate resolution of this case is to set aside the order made at trial and order a new trial and I would so order.

 

In Ciolli v Galley, the Jury awarded over 12 million dollars to the Plaintiff for three separate motor vehicle accidents. ICBC’S lawyer appealed, arguing that the trial judge did not give proper instructions to the jury. In allowing the appeal, and ordering a new trial, the British Columbia Court of Appeal commented that:

 

[20]           The trial judge concluded in the case at bar, however, that the defendants’ real complaint was that the jury’s award was inordinately high or wholly out of proportion to the evidence.  In her analysis, unless there was “no evidence to support the jury’s findings”, a trial judge was unable to reject a jury’s verdict, and it could not be said there was no such evidence in this case.  She dismissed the motion and entered judgment for the jury’s award, subject to the reduction in non-pecuniary damages to $327,000.

 

[21]         As mentioned earlier, the defendants contend on appeal that the trial judge erred in refusing to grant the mistrial application and in failing to give an even-handed and fair summary of the evidence to the jury; and that the jury’s awards were without foundation or wholly out of proportion to the plaintiff’s losses.  I have already noted that the trial judge’s many references to the damages to which Ms. Ciolli was “entitled” may well have led the jury to be confused about the question of causation and about their duty to determine which of the plaintiff’s claims, if any, were properly attributable to the car accidents and in connection with the costs of future care, which were medically justified.  Fairness also required that in connection with loss of income-earning capacity and future care costs, the jury be instructed as to the need to apply a discount rate in order to assess the present value of the awards for future contingencies, and of course on the need to reduce such awards to reflect that they did represent contingencies rather than certain losses.  The law is clear that a trial judge’s failure to so instruct a jury constitutes error: see, e.g., Bell v. Stubbins (1991) 7 B.C.A.C. 177 at paras. 10-17; Halliday et al. v. Sanrud (1979) 15 B.C.L.R. 4 (C.A.) at 9.

 

[22]         It is also clear that the awards for non-pecuniary damages and loss of income-earning capacity were wholly out of proportion to what was justified by the evidence before the Court.  The non-pecuniary award of $327,000 would have been justified only had the plaintiff suffered a truly catastrophic injury, but the jury was not instructed to this effect.  (Counsel for Ms. Ciolli rightly acknowledged before us that her injuries were not catastrophic.)  With respect to loss of income-earning capacity, as Mr. Gunn submits, the sum of $5,600,000, if calculated over 23 years (i.e., until the plaintiff reaches age 65), constitutes an award of $243,478 per year.  It did not reflect the fact that the award is for a contingency rather than a certain loss, nor a discount rate required to represent the present value of the loss.

 

[23]         The foregoing errors are more than sufficient to warrant our interference with the jury’s award and to order a new trial.

 

In Wright v. Craft, the Plaintiff was injured in a motor vehicle collision, and consequently brought an ICBC claim for damages for pain and suffering, past wage loss, diminished earning capacity, out of pocket expenses, and cost of future care. The trial proceeded by judge and jury, with the jury only awarding $10,500.00 for the pain and suffering aspect of the claim. Counsel for the Plaintiff made an application to the trial judge, for an order that the judgment could not be pronounced on the verdict found by the jury. Counsel for the Plaintiff argued that the answers in the jury verdict were conflicting, and that there was no evidence to support the jury of the verdict. Counsel for the Plaintiff sought to have the trial judge substitute her judgment on quantum (amount) of damages in place of that of the jury. The trial judge, however, refused to substitute her assessment of non-pecuniary damages for that of the jury’s.

 

[5]               The case involved an injury to the plaintiff’s wrist following a motor vehicle accident on July 11, 2004.  The trial, over a period of nine days, received evidence from 26 witnesses.  Five of those were therapists, physiotherapists, occupational therapists, and a rehabilitation consultant.  Seven medical doctors were called, a specialist in family medicine, an orthopaedic surgeon, a psychologist, a radiologist, two specialists in physical and rehabilitation medicine and a neurologist.  There was considerable conflict in the medical evidence.

[6]               The plaintiff argues that it was unreasonable for the jury to conclude that she had reached a level of functioning in light of all the medical and other evidence.  That the jury must have rejected all of her evidence, including medical evidence called on her behalf.  Further, that an award of $10,000 for an injury that has persisted over a period of three years and continues by way of chronic pain to this day is inordinately low, and in all, the verdict was unreasonable.

 

[8]               While I agree with the plaintiff that in light of the evidence the verdict is low, I cannot find that the damages are so inordinately low as to give the plaintiff the remedy which she seeks.

[9]               It was argued that to award $5,500 for the cost of future care and nothing for loss of future earning capacity was a conflict.  That certainly would be the case had the jury awarded anywhere near the amount sought by the plaintiff for cost of future care.  That figure was in the neighbourhood of $150,000.

[10]           However, in all the circumstances, I cannot find that the verdict was perverse or so inordinately low that I should substitute my assessment for that of the jury.

 

In British Columbia, either the Plaintiff or Defendant can request that a trial proceed by way of a judge and jury. The only exception is with respect to “fast track” litigation, where jury trials are not allowed. Rule 12-6 of the British Columbia Supreme Court Civil Rules deals with Jury Trials.

 

There is far more unpredictability in the amount of damages awarded when the trial proceeds by way of a judge and jury, rather than a judge alone. For the most part, the Court of Appeal will not intervene when a jury award is appealed, however there are circumstances where they will.

 

In Toor v. Toor, the Plaintiff was injured in a car accident, and consequently brought an ICBC claim for damages for pain and suffering, as well as other heads of damages, such as cost of past care, cost of future care, and out of pocket expenses. At the original trial by judge and jury, the Plaintiff was awarded $10,000 for pain and suffering, and approximately $45,000 overall. Counsel for the Plaintiff appealed, arguing that the overall amount awarded by the jury was inordinately low, was inconsistent with the judge’s view of the evidence, and was based on improper cross-examination by counsel then acting for the Respondents . The British Columbia Court of Appeal agreed, and ordered a new trial.

 

[13]           As earlier stated, I am satisfied that the award of the jury for non-pecuniary damages is so inordinately low that it constitutes a wholly erroneous estimate of damage.  (See Nance v. British Columbia Electric Railway, [1951] 3 D.L.R. 705 at 713 (P.C.).)  This Court has held that, to be wholly erroneous, an award must be inconsistent both with the facts of the case and in comparison to awards made in comparable cases.  (See Cory v. Marsh, (1993), 77 B.C.L.R. (2d) 248 (C.A.) at para. 8.)  In making this determination, the Court must show considerable deference to jury awards, and will only interfere where the award made by the jury is significantly outside the range of awards in comparable cases.  (See Dilello v. Montgomery, (2005), 37 B.C.L.R. (4^th) 72 at para. 39 and Unger v. Singh, (2000), 72 B.C.L.R. (3d) 353 (C.A.) at paras. 24-26.)

 

[14]           At the outset of this discussion, it is important to observe that it is apparent from its verdict that this jury was not persuaded that Mrs. Toor had suffered anything resembling the degree of injury or consequential impact on quality of life claimed by her.  The awards under all heads of damage are relatively modest and cannot be reconciled with the evidence called on her behalf.

[15]           In my view, it is implicit in the jury’s awards that it rejected Mrs. Toor’s claims that she had suffered a significant head injury or post-concussion syndrome in the accident.  Similarly, it is implicit in its awards that it rejected the evidence that Mrs. Toor suffered from a debilitating depression arising from the accident which affected all aspects of her life such that she would require the services of a daily caregiver for the rest of her life.  In rejecting those claims, the jury must be taken to have had significant reservations about the evidence of Mrs. Toor and her family, and to have accepted the respondents’ view that the medical evidence which relied upon that evidence should be approached with caution.

[16]           It is apparent from its award of damages for cost of future care, however, that the jury was satisfied that Mrs. Toor had suffered injuries in the accident which continued to affect her as of the date of trial (four years post-accident) and that her injuries would continue to affect her in the future.  In other words, it is apparent that the jury did not regard her injuries as falling into the category of a relatively minor whiplash which had resolved by the time of trial.  Based on the award of $33,000 for the cost of future care, it is also reasonable to assume that the jury considered that Mrs. Toor would require some level of care for at least a couple of years post-trial.  The question is whether, accepting that view of the evidence, the award of $10,000 for non-pecuniary damages was inordinately low.

[17]           Based on decisions of this Court, including Cory, this Court must endeavour to compare the award of $10,000 in this case with awards in similar cases.  This is a less than scientific task given the fact that the Court must struggle with a verdict which is unsupported by reasons in circumstances where credibility was in issue.

 

In Ramcharitar v. Gill, the Plaintiff was injured in a motor vehicle collision, and subsequently brought an ICBC claim for non-pecuniary damages, as well as various other forms of damages. The trial was heard by a judge and jury, with the jury concluding that the Defendant was liable for the accident, but that the negligent conduct had not caused or contributed to the Plaintiff‘s injuries in any way. As such, the jury did not award the Plaintiff any damages. Immediately following the verdict, ICBC’S lawyer made an application to have the claim dismissed, which was granted. The formal Judgment had yet to be entered when counsel for the Plaintiff made an application, pursuant to the inherent jurisdiction of the Court and the Rules of Court, to set aside the verdict of the jury and for a new trial or, in the alternative, to have the trial judge substitute his own verdict for that of the jury. The trial judge dismissed the applications by Plaintiff‘s counsel.

 

[21]           I also note that plaintiff’s counsel was given an opportunity to comment on the substantive elements of the jury charge and questions.  Although he made submissions regarding other parts of the charge, neither he nor defendant’s counsel took issue with the part of the charge concerning negligence.  I do not accept that the charge is defective but, if I am wrong, the issue is for the Court of Appeal.

[22]           As I understand the plaintiff’s second issue, he says that there was clearly evidence to support a finding that the negligent conduct of the defendant caused some injury to the plaintiff, even if it was much less extensive than the plaintiff claimed.  He points out that the defendant did not argue otherwise.  As the sole finder of fact, the jury is entitled to accept all, none or part of the evidence put forward on behalf of the plaintiff.  It is obvious that the jury rejected the evidence of the plaintiff and his witnesses in its entirety.  Whether it was reasonable for the jury to do so in the circumstances is a question potentially for the Court of Appeal but, in my view, a trial judge may not reject such a finding.

 

[23]           This is not a case of a jury making a finding that has no evidentiary basis which would be subject to correction by a trial judge exercising his or her inherent jurisdiction.  In substance, the plaintiff’s complaint is that the jury should not have answered the second question in the negative, at least having regard to the apparently undisputed evidence before it.  In my view, no trial judge could ever intervene or reinstruct a jury in such a circumstance without saying, in effect, that his or her view of the reliability of some, or all, of the evidence should prevail over the view of the jury.

 

[24]           In an alternative argument, the plaintiff complained of statements made by counsel for the defendant during closing submissions to the jury.  Counsel for the plaintiff did not raise those complaints after the submission and I would not accede to them at this late juncture.