Court of Appeal Upholds Jury Chronic Pain Award Despite Inappropriate Submissions by Counsel

Reasons for judgement were published today by the BC Court of Appeal dismissing an application for a new trial following a jury award in a chronic pain case.

In today’s case (Brown v. Goodacre) the Plaintiff was injured in a rear end collision that the Defendant was liable for.  The crash resulted in chronic pain and a jury awarded the plaintiff $847,000 in total damages.

The Defendant appealed seeking a new trial arguing plaintiff’s counsel made inappropriate submissions during the trial including

(i)       personalizing the case by bringing himself into the opening statement and closing submissions;

(ii)      giving his personal opinion on the issues, including putting his personal stamp of approval on the merits of his client’s case;

(iii)      giving engineering evidence in the guise of a common sense observation; and

(iv)     in one case, quoting a statement from a medical report that was not in evidence at trial.

The Court of Appeal noted that while some of the comments were not appropriate a failure to object during trial coupled with the trial judge’s caution to the jury about many of these comments meant no new trial was warranted.  In reaching this decision the Court of Appeal provided the following reasons:

[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.

[41]         On the first such occasion, the judge specifically cautioned the jury that:

… counsel should not be expressing their personal opinions about a case or about a witness. If counsel does and you decide that, you have to disabuse your mind of that. You cannot allow counsel’s personal views to sway you.

… if you have concluded that what [plaintiff’s counsel] has said, or for that matter what anybody else says, personalizing a case, you decide your case, this case, strictly on the evidence.

[42]         In his charge to the jury, the trial judge reiterated his caution that “neither counsel should have personalized this case or be seen to have put their stamp of approval or endorsement on their client’s position” and addressed another issue that the appellant has raised in this Court, the assertion that plaintiff’s counsel had attempted to inoculate his client from weaknesses in the case by deflecting any such weaknesses onto himself:

It matters not, ladies and gentlemen, that [plaintiff’s counsel] says he is committed to helping Mr. Brown or that he hopes he has given his best for his client. What matters is the evidence that both sides have presented to you, the arguments they have made based on that evidence and your assessment of that evidence.

[43]         These instructions are appropriate to deal with the concerns arising from the submissions of plaintiff’s counsel. Judges should not be quick to assume that the manner in which counsel addresses a jury will unduly influence them. As Justice Smith said in Cahoon:

[2]        That a jury might be improperly influenced by the words and tactics of counsel is no doubt possible: … But it must be rare in modern times that counsels’ words and actions alone could hoodwink eight citizens chosen at random and properly instructed in the law and so divert them from the due discharge of their duty. …

[Citations omitted.]

[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.

[45]         I should add that not all of the comments to which the appellant takes exception as improper personalization are in fact improper. One clear example is the appellant’s submission that plaintiff’s counsel exceeded the parameters of a proper opening statement when he said to the jury:

His condition is chronic; it’s ongoing. I have no idea if it’s going to end.

[46]         On its face, this would be an improper statement of counsel’s opinion. However, the respondent points out that what plaintiff’s counsel was doing in this part of his opening was paraphrasing one of the medical opinions he intended to adduce. The full context makes this clear:

You’re going to hear from Dr. Gee. The family doctor’s going to come testify. He’s going to indicate that he initially believes the soft tissue injuries that he has — Mr. Brown — and that Mr. Brown has not responded to conservative measures, which included various therapies that I just mentioned. His condition is chronic; it’s ongoing. I have no idea if it’s going to end. And the chance of him showing significant improvement in the future is unlikely, he will tell you. And in his opinion, it’s unlikely he was going to be able to return to his occupation as a painter.

[Emphasis added.]

[47]         There is nothing improper about this statement when read (or heard) in context.

[48]         Defence counsel did object to one other statement the appellant contests, the reference to a portion of a medical report that was not properly in evidence (what I referred to earlier as the Expert Evidence Quote). However, the judge gave a cautionary instruction to the jury concerning this matter. On this occasion, the trial judge asked defence counsel whether he was making an application and was advised that he was not. Defence counsel was presumably satisfied with a cautionary instruction. Absent exceptional circumstances, it would not be appropriate for this Court to intervene when counsel at trial adverted to the issue and elected not to ask for a stronger remedy.

[49]         The final area of dispute in this Court concerned statements made in both the opening statement and closing submissions that the appellant characterizes as giving what amounts to engineering evidence concerning the impact of the collision on the hitch of the plaintiff’s car as contrasted with the bumper of the defendant’s car, and the transfer of the force of the impact to the occupants of the plaintiff’s vehicle. The trial judge was in the best position to assess the significance of these statements on the jury. They are not of themselves sufficient to conclude that the trial was unfair, and once again, the failure of defence counsel to object to the statements weighs heavily against any conclusion that the statements imperiled the fairness of the trial.

[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.