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BC Court of Appeal Upholds "low" Non-Pecuniary Damage Award in Brain Injury Claim

In what may be the low water mark in upheld assessed damages for a skull fracture and brain injury, the BC Court of Appeal upheld a jury’s damage award of $35,000.
In today’s case (Paskall v. Scheithauer) the Plaintiff was involved in a pedestrian/vehicle collision.  She sustained serious injuries including a left temporal skull fracture, a basal skull fracture and a traumatic brain injury.   The only expert evidence the jury heard from were independent medical examiners hired by the Plaintiff.  The Defendant conducted a defense medical examination but did not produce a report.  The Plaintiff did not call any of her treating physicians.  The Defendant argued that while the injuries were severe they recovered well, a conclusion the jury may have accepted.
In upholding the “low” assessed non-pecuniary damages the  BC Court of Appeal provided the following reasons:
[42]         The injuries sustained by the appellant were significant, but there is no schedule for an award of non-pecuniary damages based on the nature of the injuries sustained.  The function of damages in tort is to put the claimant into the position she would have been in had the tort not occurred.  Compensation for the trauma and pain of her injuries is required, but further compensation requires proof of ongoing adverse effects.  It is apparent that the jury, in its award of non-pecuniary damages, did not accept that the appellant has serious, ongoing adverse effects.
[43]         Although the award for non-pecuniary damages appears to be low, in my view, it was open to the jury to make it.  It reflects the jury’s consideration of the fact the appellant was injured seriously and its assessment that her injuries did not have a long-term serious effect.  I see no basis on which this Court could interfere with it.
In concurring reasons Madam Justice Saunders commented as follows:
[97]         My second comment is in respect to the award of non-pecuniary damages. Damages are a question of fact, as to which this court owes deference to the fact finder. The classic statement of our role as an appellate court found in Nance v. British Columbia Electric Railway Company Ltd., [1951] A.C. 601 at 613-14, [1951] 3 D.L.R. 705 (P.C.), has equal force today:
… Whether the assessment of damages be by a judge or a jury, the appellate court is not justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case at first instance. Even if the tribunal of first instance was a judge sitting alone, then, before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage (Flint v. Lovell, [1935] 1 K.B. 354, approved by the House of Lords in Davies v. Powell Duffryn Associated Collieries, Ld., [1942] A.C. 601). The last named case further shows that when on a proper direction the quantum is ascertained by a jury, the disparity between the figure at which they have arrived and any figure at which they could properly have arrived must, to justify correction by a court of appeal, be even wider than when the figure has been assessed by a judge sitting alone. The figure must be wholly “out of all proportion” (per Lord Wright, Davies v. Powell Duffryn Associated Collieries, Ld., at 616).
                                                                                          [Emphasis added.]
[98]         While the award is very much at the low end of those amounts awarded for traumatic brain injury in many other cases, we cannot say, on the evidence the jury could have accepted, that the award is a “wholly erroneous estimate of her loss of amenities and enjoyment of life”.
[99]         Accordingly, I, too, would dispose of the appeal and cross appeal in the manner described by Mr. Justice Chiasson.

Paskall v. Scheithauer