Jury Trials – BC INJURY LAW

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

Written by ERIK MAGRAKEN on January 23, 2020. Posted in Civil Procedure, ICBC Chronic Pain Cases, Jury Trials.

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:

No Mistrial For “Inapropriate” Comments to Jury Where Corrective Instruction Will Do

Written by ERIK MAGRAKEN on July 11, 2019. Posted in Civil Procedure, Jury Trials.

Reasons for judgement were published today by the BC Supreme Court, Penticton Registry, denying a mistrial request based on inappropriate closing submissions to a jury.

In today’s case (Johal v. Johal) the Plaintiff was injured in a collision and sued for damages. The court noted that throughout his closing submissions, plaintiff’s counsel made several references to the fact the defendants did not call a case. These included:

ICBC Jury Trial Request Denied Where In House Counsel Failed to File Jury Notice in Time

Written by ERIK MAGRAKEN on June 25, 2019. Posted in BCSC Civil Rule 12, BCSC Civil Rule 22, Jury Trials.

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, dismissing an ICBC application to lengthen the applicable time frame to file a jury notice.

In today’s case (Chapman-Fluker v. Gustavson) the Plaintiff was injured in a collision and sued for damages. The Defendants, insured by ICBC and initially represented by in house counsel, failed to file a jury notice in the applicable time frame.

Months before trial the Defendants applied to allow them to file their jury notice beyond the specified time limits.

Plaintiff Ordered to Pay Double Costs After Jury Dismisses Injury Claim

Written by admin on September 14, 2018. Posted in BC Supreme Court Costs Cases, Jury Trials.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, ordering a Plaintiff to pay double costs to a Defendant after a jury dismissed her injury claim.
In the recent case (Brar v. Ismail) the Plaintiff alleged injury following a collision and sued for damages. Prior to trial the Defendants offered to settle for $50,000. A further offer of $65,000 was tabled. Neither side compromised and the Plaintiff proceeded to trial where damages of over $500,000 were sought. The Defendants attacked the Plaintiff’s credibility and introduced surveillance evidence which the court called “compelling”.
The Jury ultimately dismissed the claim. In ordering that the Defendants were entitled to pre offer costs and post offer double costs Mr. Justice Myers provided the following reasons:

[23] The issue of whether an offer to settle ought reasonably to have been accepted is determined by the factors existing at the time of the offer and not with the hindsight of a judgment or jury verdict.

[24] The main point this question hinges on is whether the credibility issues were obvious and significant enough to the plaintiff so that she ought to have accepted one of the offers.

[25] From at least the time the video surveillance was delivered, it was obvious that the plaintiff’s credibility would be front and center. There were inconsistencies between what it showed and what she relayed to her experts. It was also obvious these inconsistencies would have a significant impact on her case. I do not agree with the plaintiff that what was seen in the video was not far off what she had had told her experts or said in evidence. Often video surveillance is not compelling; here it was.

[26] Moreover, as argued by the defendants, the plaintiff also had further credibility difficulties that ought to have been apparent to her counsel:

· The plaintiff’s evidence was that she hit her head in the accident and had immediate dizziness and nausea including vomiting at the accident scene; however, these complaints were not documented in her GP’s records during her initial visit, which was only hours after the accident. Her GP testified that he would have made a note of these complaints if they were made to him.

· The plaintiff’s evidence that she was disoriented and vomited at the accident scene was contradicted by Mr. Ismail’s evidence and that of his brother;

· In her discovery, the plaintiff said she had not done any form of work, whether paid or voluntary. She had also stated during her examination for discovery that she never helped her husband in his business (even though she was president and 100% shareholder). However, at the trial she acknowledged she had in fact done work for her husband’s business since the accident. Further the surveillance video showed the plaintiff working at an elections voting station.

· At examination for discovery the plaintiff stated she did not have any other sources of income other than what she received from her employer, Swissport. She also said she did not own any other properties other than her primary residence. However, her income tax records showed significant amounts of rental income, and she later admitted at trial that she and her husband received rental income from a property she was on title for. Her reported rental income was more than she had ever earned from Swissport before the accident.

…

[37] I said I would return to the timing of the second offer There was nothing to prevent the defendants from providing the surveillance far sooner, given its importance; as noted above, it was completed in January 2018. The fact that it was disclosed in compliance with the rules does not mean that its timing cannot be a consideration with respect to the discretion to award double costs. As well the $65,000 offer, which was not delivered until five days before trial, could have been delivered sooner. This would have given the plaintiff more time to consider her position, without prejudicing the defendants. Therefore, in my view, the defendants should receive ordinary costs up to and including the first five days of trial and double costs after that.

Mistrial Declared After Late Record Production and Late Report in ICBC Injury Claim

Written by admin on August 29, 2017. Posted in Civil Procedure, Jury Trials.

Reasons for judgement were recently published by the BC Supreme Court, Vernon Registry, declaring a mistrial in an ICBC injury claim proceeding before a jury.
In the recent case (Hilton v. Brink) the Plaintiff was involved in a collision and sued for damages.
The Plaintiff produced additional medical records close to trial resulting in an updated defense report addressing the Plaintiff’s injuries. A trial was underway with a jury being selected and the Plaintiff objected to the late report being admitted.
The Court ruled that the report, with some corrections, would be admissible but doing so would prejudice the Plaintiff and a mistrial was the only sensible outcome. In reaching this result, which nether party wanted, Mr. Justice Abrioux noted there was “blame to go around” and provided the following reasons:

[38] I will now address the issue regarding the additional records which were provided to Dr. Pisesky well after his First Report.

[39] Perhaps not surprisingly, both the plaintiff and the defendant blame each other for the situation which has developed. In my view there is more than enough blame to go around.

[40] Without reviewing all the correspondence and what occurred between the parties, the plaintiff shares significant responsibility in my view, in light of the allegations of chronic pain, for not having obtained in a timely way documents from prior health care professionals, particularly for the two years or so prior to the Accident. Had the plaintiff provided an MSP printout commencing two years prior to the Accident, as had been requested as early as the fall of 2015 and on several occasions thereafter, the records obtained after March 31, 2017 would have been produced to the defence much earlier than that. This would also apply to Dr. Newmarch’s records which contained Dr. Oyler’s 2011 Consultation Report.

[41] But the defence shares a significant part of the blame as well. When I review the correspondence, the requests made for records, and the plaintiff’s transparent replies, this was a case which cried out for a chambers application well before early July 2017, that is a month before the scheduled trial date.

[42] There is also the fact that the plaintiff did refer at her examination for discovery in January 2016 to the difficulties she was having pre accident. It will be up to the trier of fact to determine if she concealed the true nature of her pre accident condition but that is certainly not for me to do on this application.

[43] The defence does appear to have moved in an appropriate manner regarding Swirski interviews and the like, but only in June and July 2017. In my view the defendant should have been much more proactive at an earlier stage.

[44] The primary relief sought by both parties would have draconian consequences on the other were it to be granted.

[45] If I were to rule the Supplementary Report inadmissible, then the defence would only be able to rely on Dr. Pisesky’s First Report and the trier of fact would be misled as to Dr. Pisesky’s actual opinions based on the additional documentation provided to him in July 2017. It is not in the interests of justice for the trier of fact to be deliberately mislead. The practical effect would be that the defence would have no expert medical evidence in a case where the plaintiff who, as I understand it , has continued to work essentially full time since the Accident served a report at the 84 day deadline which assesses her loss of earning capacity arising from the injuries sustained in the Accident at $300,000.

[46] On the other hand, if I admit the report into evidence in whole or in part, the plaintiff would not have the opportunity to properly address the opinions in the Supplementary Report which was only received on July 26, 2017.

[47] There is also the fact that the plaintiff should, in my view, have the opportunity to consider obtaining a report from an orthopaedic surgeon, which is Dr. Pisesky’s field of expertise to deal with the issues raised in the Supplementary Report, including his review of what appears to be a CT scan report. This may well not be an issue which can be addressed by a physiatrist or a general practitioner, albeit one with the qualifications of Dr. Etheridge.

[48] The plaintiff’s submission was that if the Supplementary Report were admitted in whole or in part that the trial should be adjourned. That cannot occur. The jury has been selected.

[49] I appreciate that both the plaintiff and the defendant would prefer this trial to proceed, but in light of the positions they have taken on this application, I see no other alternative to a mistrial. This, in my view, will provide fairness to both parties. They will now have the opportunity to put before the trier of fact the evidence they consider necessary based on the recently obtained records.

[50] A new trial will also provide the defence to address some obvious deficiencies in the Supplementary Report, in particular Dr. Pisesky’s statements regarding the plaintiff’s credibility.

[51] I declare a mistrial.

Complex Wage Loss Claim Fuels Successful Jury Strike Application

Written by admin on December 7, 2016. Posted in BCSC Civil Rule 12, Jury Trials.

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, granting a Plaintiff’s jury strike application.
In today’s case (van Driesum v. Young) the Plaintiff was involved in a 2011 collision and sued for damages. The trial was scheduled for 18 days before a jury at the Defendants election. The Plaintiff succeeded in striking the jury from the case largely on the basis that his wage loss claim was complex. In granting the application Mr. Justice Macintosh provided the following reasons:
[6]             The overall question is trial fairness, weighing the Defendant’s presumptive right to a jury against the risk of unfairness to the Plaintiff by having a jury attempt to decide facts and answer questions which are too intricate or complex. My conclusion is that this case should not proceed with a jury.
[7]             The motor vehicle accident giving rise to the claim occurred on February 23, 2011. That year also serves as the approximate dividing line between what I will characterize as two separate careers for the Plaintiff. The methods for determining income loss and lost-earning capacity are complicated within each of his two careers. In what I am viewing as the Plaintiff’s post‑accident career, or second career, determining income loss and lost-earning capacity are, in my view, particularly complex.
[8]             Before the accident, the Plaintiff practised law for 20 years. For the last 17 of those years, he was a partner in a Victoria law firm. During at least part of that time, he practised law through the business model of a personal law corporation. Money he received from the firm went into his law corporation. He did not take all that money out, at least not regularly. Also, he split income with his wife in reliance on the applicable tax laws. Accordingly, his income tax returns do not tell the full story of his pre‑accident earnings. They need to be interpreted together with his personal law corporation’s annual financial statements, and the particulars of his income splitting with his wife.
[9]             In the result, determining the Plaintiff’s pre‑accident earning history will not be a straightforward exercise. The complexity of that exercise, however, pales when it is compared with determining the Plaintiff’s earnings, lost earnings, and diminished earning capacity post-accident.
[10]         The Plaintiff has maintained, at different times, at least three personal companies: through one, after his accident, he became the president of a mining company; through another, also after the accident, he consulted on WorkSafe BC claims; the other was his pre‑existing personal law corporation, which remained in place until December 31, 2014, to receive the Plaintiff’s declining earnings from his residual practise of law. That included some post‑accident legal work by the Plaintiff, as well as some pre‑accident legal work which gave rise to post‑accident remuneration.
[11]         It will, in my view, be extremely difficult for the trier of fact to sort out both the Plaintiff’s true earnings in the post‑accident period, and the extent to which the accident impaired his earning capacity.
[12]         Furthermore, the Plaintiff’s post‑accident earnings history, and evidence of earning capacity, is over-layered with a dispute the Plaintiff had with a post‑accident business colleague, who was a former client from the Plaintiff’s law practice. Plaintiff’s counsel characterized the evidence of that dispute as amounting to a trial within a trial in this proceeding, and that is not an unreasonable analogy.
[13]         The difficulties for a jury in this case would be increased by the difficulties a judge would have in properly charging the jury in matters of causation and the quantification of damages.
[14]         The brief summary above, of the complexities in determining both causation and damages, and in the judge charging the jury, probably would have caused me to strike the jury even if there were no other relevant facts. When I add the other complexities of the case, which are associated with the accident itself, and the related medical evidence, the complexity is only increased.
[15]         I will preface this next part of the analysis by saying that what I call the accident evidence and medical evidence, viewed in isolation, would probably not have caused me to strike the jury. That evidence becomes relevant on this application, however, when it is added to the evidence associated with determining the past and future income loss, and diminished earning capacity, discussed earlier in these reasons.
[16]         Liability is in issue. All the elements of the damages claimed are also in issue. The Defendant, through his pleadings and his expert witnesses, disputes diagnosis, causation, mitigation, prognosis and the Plaintiff’s working capacity. It is probably the case, as well, that at least some clinical records will have to become part of the evidentiary record.
[17]         The Plaintiff plans to call nine expert witnesses in at least seven disciplines, and the Defendant plans to call four expert witnesses and tender eight expert reports. I further note that the Plaintiff intends to object to all or part of three of the Defendant’s expert reports, and the Defendant intends to object to all or part of four of the Plaintiff’s expert reports.
[18]         The law is clear in saying that the judge’s discretion on this application must be exercised having primary regard to his or her assessment of the relevant factors present in the particular application: see Rados v. Pannu, 2015 BCCA 459, at paras. 30‑32 and Such v. Dominion Stores Ltd., [1961] O.R. 190 (Ont. C.A.). In other words, the analysis, not surprisingly, is driven by the facts present in the application at bar.
[19]         What is appropriate for a jury to try has to do not only with the jury’s capacity to understand the evidence as it is presented and rebutted, but also to retain over several weeks what they have heard and then analyse it in the context of the questions they are required to answer. (See Wipfli v. Britten, [1981] B.C.J. No. 1706 (F.C.) at paras. 30 and 31.)
[20]         When the facts in this application are viewed through the legal prism of the cases cited above, I find that the Plaintiff has established the three grounds he relies upon, noted above in paragraph 5. As stated above in paragraph 6, I conclude that I should exercise my discretion to strike the jury.

Plaintiff Allowed To Tell Jury About Defence Medical Exam That Resulted in no Report

Written by admin on January 4, 2016. Posted in Civil Procedure, Jury Trials.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, confirming it is fair game for a plaintiff to testify they attended a defence medical exam where no report was produced and the Defence is not relying on opinion evidence from their expert.
In the recent case (Norris v. Burgess) the Plaintiff alleged injury as a result of two collisions. The Defendants denied any injury occurred. In the course of the lawsuit the Plaintiff attended a defence medical appointment with a psychiatrist. The Defendants “chose not to obtain a medical opinion from the psychiatrist” and did not call him as a witness. In the course of trial the Defendants objected to the Plaintiff testifying “as to her attendance and surrounding circumstances of the independent medical examination“.
In ruling that such testimony is fair game Mr. Justice Funt provided the following reasons:

[12] The Court will rule in the plaintiff’s favour.

[13] As Rule 7-6 of the Supreme Court Civil Rules contemplates, an individual medical examination may be ordered where the “physical or mental condition of a person is in issue”. In this case, the independent medical examination was not pursuant to a court order. The Rule, however, illustrates that an independent medical examination will usually occur only where there is a physical or mental condition in issue.

[14] The plaintiff’s medical condition is clearly in issue. Where the defence asserts that the plaintiff may have exaggerated her injuries, steps taken by the plaintiff at the request of the defence may be relevant.

[15] Even if there were for closing argument an agreed stipulation of the plaintiff’s attendance at the independent medical examination, I would prefer that the evidence be led as part of the plaintiff’s case. I would be concerned that the jury could be confused. Evidence and argument should be kept separate.

[16] Civil litigation is adversarial and litigant-driven. Where one party asks that the other party attend an interview or examination with a third person (whether or not that person is an expert) and the other party so attends, the requesting party should not be surprised that the interview or examination may be relevant with evidentiary consequences, including the possibility of an adverse inference. An unwanted but foreseeable consequence does not give rise to unfair prejudice.

[17] In short, plaintiff’s counsel may lead evidence as to the plaintiff’s attendance, and surrounding circumstances, regarding the independent medical examination requested by the defendants.

Retrial Ordered After "Inconsistent" $765 Jury Award in Personal Injury Claim

Written by admin on November 27, 2015. Posted in BCSC Civil Rule 12, Jury Trials.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering a retrial after a jury awarded special damages but nothing for non-pecuniary loss in a personal injury lawsuit.
In today’s case (Harder v. Poettcker) the Plaintiff proceeded to jury trial after alleging injuries in a collision. The jury found the Plaintiff 85% at fault for the crash and awarded a total $5,100 in damages, which were all based on out of pocket expenses and awarded nothing for non pecuniary damages. After applying the split of fault this left an award of $765.
The presiding judge found a new trial was necessary as it was inconsistent to award money for special damages yet nothing for non-pecuniary loss for the injuries underlying the need for those damages. In reaching this conclusion Mr. Justice Sigurdson provided the following reasons:

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.

[21] The question then arises whether I can and should sever the issues of liability and damages and enter judgment on liability for the plaintiff including the contributory negligence finding and direct a retrial only on damages, or whether I should order a retrial of the entire case.

[22] I have concluded that I am bound by the considered decision of my brother Weatherill J. in Kalsi. Although severance may be ordered in many cases before trial, this is not an appropriate case to have issues that are largely dependent on credibility decided by different triers of fact.

[23] Given that there must be a retrial, how should that take place? A further trial by a new jury would be months, or a year or more, ahead. The mode of trial by jury was at the plaintiff’s request but now he wants the retrial by judge alone. The plaintiff now consents to and requests a retrial being conducted before me.

[24] I think for a number of reasons that the retrial should be before me. I heard all of the evidence and the submissions of counsel. Given the fact that it would be a lengthy time until the matter is retried before a jury, and given the age of the plaintiff and the question of cost to the parties, I think it is appropriate that I conduct a retrial based on the evidence I have heard and I so order. Accordingly I exercise my discretion under the governing rule that the retrial take place before me without a jury.

[25] I have heard the submissions of counsel and a recording of those submissions is available to me to refresh my memory. Counsel may make further submissions in writing on liability and damages provided they do not repeat what I have already heard in the submissions to the jury. I ask that the plaintiff file his argument within three weeks and the defendant his argument within three weeks following, with the plaintiff having a right of reply within a week. I will then hand down a written decision.

BC Court of Appeal – Jury Trial OK in Case With 40 Expert Reports

Written by admin on November 10, 2015. Posted in BCSC Civil Rule 12, Jury Trials.

Reasons for judgement were released today by the BC Court of Appeal finding a personal injury lawsuit with 40 expert reports totaling over 700 pages was not too complex for a jury to determine.
In today’s case (Rados v. Pannu) the Plaintiff alleged serious injuries as a result of a motor vehicle collision including “a traumatic brain injury; a vestibular injury that has impaired the appellant’s balance and induced bouts of nausea, dizziness and vomiting; various musculoligamentous and other physical injuries; and, a major depressive disorder”.
The Defendants elected a jury trial and the Plaintiff objected arguing the case was ‘too complex’ and pointed to the sheer volume of competing expert evidence. The Plaintiff pointed to many cases where discretion was exercised to strike a jury in similar cases. In finding that judicial discretion does allow for competing results and more than ” adding up the number of experts and medical issues or the number of pages of documents or the length of trial” is needed the Court provided the following reasons:

[22] As I turn to consider the appellant’s argument, it is useful to remember that a decision whether to strike a jury notice is not only discretionary, but also engages important issues of trial management. The determination of such issues is properly a matter for the trial court. Furthermore, the onus is on the applicant to displace the presumptive right to a jury: MacPherson v. Czaban, 2002 BCCA 518 at para. 17, leave to appeal ref’d [2002] S.C.C.A. No. 480. Accordingly and appropriately, decisions of this kind attract considerable deference from this Court. These decisions turn critically on an assessment by the trial court of multiple factors bearing ultimately on the question whether a matter can be conveniently tried with the jury or should be heard without one.

[23] The appellant points to numerous cases in which jury notices have been struck which share similarities with this case in terms of the number of medical issues, the number of experts, the nature of the issues and the length of trial. He suggests the result in this case cannot be reconciled with the results in those cases. Thus, he argues that the bar for striking a jury notice has been raised to a level beyond anything that can be accounted for by the inevitable variability of outcome inherent in the exercise of discretion.

[24] I accept that, as was pointed out in Cochrane v. Insurance Corp. of British Columbia, 2005 BCCA 399 at para. 28:

It is unassailable that decisions under Rule 39(27) are driven by the particular facts of the case. Even so, the facts in prior decisions are helpful in determining whether the discretion to grant or refuse an order to strike a jury notice has been exercised judicially.

[25] It follows from this that, even allowing for the inevitable variation in outcomes arising from exercises of discretion, one would expect decisions with broadly similar facts to produce broadly predictable outcomes if discretion is being exercised judicially…

[30] In my opinion, while other similar cases can assist in assessing whether discretion has been exercised judicially, broad and general similarities may mask material differences. The analysis does not begin and end with adding up the number of experts and medical issues or the number of pages of documents or the length of trial. Those factors may be indicative of whether the trial may be conveniently heard with a jury, but they are not necessarily the last word. They were not here because the judge delved deeply into an analysis of the factual circumstances engaged in the trial and exercised his discretion based on his assessment of those circumstances.

[31] The appellant is not able to point to any relevant factors the judge failed to take into consideration in exercising his discretion, nor can he point to any irrelevant factors he did consider. He is not able to point to any consideration receiving too much or too little weight. In short, the appellant was not able to direct us to any specific error in the exercise of discretion that would warrant this Court interfering with the order.

[32] The appellant suggested that if this order is not set aside, this Court would be endorsing a much higher bar for striking a jury notice than has previously been the case in this province. I do not accept that submission. In my view, this case turned on its specific and particular factual circumstances as they stood at the time of the application and as they were analyzed by the judge. The judge then properly applied the relevant considerations to the exercise of his discretion. The case turned on its facts and does not represent a departure of principle or a resetting of the height of a bar.

[33] Finally, it should be pointed out, as the chambers judge did, that when this matter comes on for trial, the trial judge “may order the trial to proceed without a jury if the interests of justice then require the making of such an order”. It may be that the case that goes to trial may be quite different to what now appears to be the case. As noted by Seaton J.A. in Ball v. Novlesky, [1981] B.C.J. No. 677 (C.A.) at para. 16, we and the chambers judge can examine the issue only on the basis of the record before us. The case at trial may be different and the trial judge would be free to deal with the issue then, if necessary.

[34] In my opinion, the submissions of the appellant do not rise above an attempt to reargue the case that was rejected by the chambers judge. I do not think that the appellant has identified any error in principle in the exercise of the chambers judge’s discretion. Accordingly, I would dismiss the appeal.

Jury Verdict Deemed Perverse For Failing To Award Non-Pecuniary Damages

Written by admin on October 2, 2014. Posted in BCSC Civil Rule 12, Jury Trials.

Reasons for judgment were released today by the BC Supreme Court, New Westminster Registry, ordering a retrial following a ‘perverse’ jury finding.
In today’s case (Kalsi v. Gill) the Plaintiff was injured in a vehicle collision. A jury found both parties equally to blame and after factoring the liability split awarded the Plaintiff $10,000 for past wage loss and special damages. The Jury awarded nothing for non-pecuniary loss. Mr. Justice Weatherill ordered a new trial and in doing so provided the following reasons:

[23] While the court should strive to give effect to a jury’s verdict, it cannot do so where the jury’s verdict is internally in conflict.

[24] In this case, it is apparent that the jury did not accept the plaintiff’s evidence as to her losses. Put bluntly, the jury did not believe her. It is obvious, however, that the jury found that the plaintiff was injured, at least to some degree, by the award for special damages of $8,000 and past loss of earnings of $12,000.

[25] While the jury is the judge of issues such as credibility, it was not open to them, after making the findings as they did regarding special damages and past loss of wages, to fail to make any award for non-pecuniary damages (Balla). Such a result was inconsistent.

[26] The basis of any tort action rests on a finding that the plaintiff suffered an injury. It is illogical to conclude that a plaintiff was injured and suffered past wage loss and special damages but did not sustain and pain, suffering, or loss of enjoyment, no matter how transient. (Balla, Stewart).

[27] The issue, then, is whether this result necessitates a new trial (Rule 12-6(7)) or whether I can pronounce judgement on some of the claims and order a retrial on the balance (Rule 12-6(8)).

[28] There is a clear difference in wording of the two rules that sheds some light on the issue. Rule 12-6(7) demands a retrial when either:

a) a jury answers some but not all of the questions directed to it, or

b) the jury’s answers are conflicting so that judgement cannot be pronounced on the findings.

[29] Conversely, Rule 12-6(8) allows partial judgment when a jury’s answer entitles a party to judgement in respect of some but not all of the claims of relief. It does not contemplate partial judgment when the jury’s answer is conflicting.

[30] Respecting the jury’s finding of liability between the parties for the collision, that question has been answered. There is nothing in the rest of the jury’s verdict that is inconsistent with it.

[31] Respecting the jury’s finding on damages, an inconsistency exists. An award for special damages and past wage loss and no award for non-pecuniary damages have repeatedly been characterized in all the relevant case law as a “conflict” and an “inconsistent result”.

[32] This conclusion is reinforced by Balla, Banks and Binnie v. Marsollier, 2001 BCCA 543. Re-trials were ordered in all three pursuant to Rule 41(2) (now Rule 12-6(7)). There was no mention of the potential application of Rule 41(3) (now Rule 12-6(8)).