"Almost Derisory" Pain and Suffering Award Overturned by BC Court of Appeal
Reasons for judgement were released last week by the BC Court of Appeal setting aside a jury verdict and ordering a new trial in a motor vehicle collision injury claim. The Court found that the Jury’s award for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) was “almost derisory” and not compatible with the other awards made.
In last week’s case (Evans v. Metcalfe) the Plaintiff was injured in a 2006 collision. The Plaintiff sought substantial damages. A jury was not receptive to much of the Plaintiff’s claim and awarded a fraction of the sought damages. The awards included $6,000 in special damages, $10,300 for past loss of income and $1,000 for non-pecuniary damages. The trial judge found these awards to be “shockingly unreasonable”.
The Plaintiff appealed arguing the non-pecuniary damage award could not be reconciled with the other awards. The BC Court of Appeal agreed stating that the other awards were consistent with a finding of a 9 month injury and a $1,000 pain and suffering award is not compatible with such a finding. In ordering a new trial the BC Court of Appeal provided the following reasons:
[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.