Court Of Appeal Refuses To Order New Trial In Chronic Pain Case, Despite Inappropriate Jury Submissions By Plaintiff’s Counsel

In Brown v. Goodacre, the Plaintiff was injured in a motor vehicle accident, and consequently initiated legal proceedings. The case was heard before a judge and jury, with the jury awarding damages of $847,000.00.


ICBC’S lawyer appealed the jury award, arguing that counsel for the Plaintiff acted inappropriately during his opening statement and closing submissions to the jury, thus rendering the trial unfair. In particular, it was argued that counsel for the Plaintiff had expressed personal opinions to the jury. ICBC’S lawyer acknowledged that he had made only limited objections, and that the trial judge did instruct the jury by cautioning them about counsel for the Plaintiff personalizing the case. Regardless, ICBC’S lawyer submitted that there were exceptional circumstances that warranted a new trial.


Despite the fact that the Court of Appeal agreed that the previous submissions at trial of counsel for Plaintiff were inappropriate, it ruled that the trial judge’s instructions to the jury, when considered in light of the failure of ICBC’S lawyer to object to most of the comments or to request a mistrial, was enough to overcome the possible prejudicial effect of the submissions of counsel for the Plaintiff. In dismissing the appeal, the Court commented,


[40] I agree with the appellant that many of the comments of plaintiff’s counsel improperly personalized the case or expressed a personal opinion inappropriate for a jury address. I would not, however, give effect to the appeal on that ground for two reasons. First, the trial judge instructed the jury appropriately concerning personal opinions of counsel on two separate occasions, once in the middle of closing submissions of plaintiff’s counsel and once in his charge to the jury, to caution them not to be influenced by such comments.


[44] The second reason I would not give effect to this ground of appeal is that defence counsel (who is not counsel on the appeal) did not object to plaintiff’s counsel’s personalizing of the case, or ask the judge to take any of the stronger steps the appellant now asks this Court to take. I say this without being in any way critical of defence counsel’s decisions. He may well have considered that any unfair aspect of the plaintiff’s jury address was adequately addressed by the judge’s instructions to the jury. He may not have considered the comments of plaintiff’s counsel to be very serious at all. He may have considered that plaintiff’s counsel was doing more harm than good to his own client’s cause. In any event, the failure to object weighs heavily against appellate intervention.


[50] Having in mind the cautionary instructions given by the trial judge to the jury, it is my opinion that there are no exceptional circumstances in this appeal sufficient to overcome the absence of objection by defence counsel to the conduct about which the appellant now complains. I would dismiss the appeal.

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