Low Jury Award For Non Pecuniary Damages Set Aside Given Findings of Ongoing Deficit

Reasons for judgment were published this week by the BC Court of Appeal overturning a low jury award for non-pecuniary damages where they also awarded damages for future medical care and diminished earning capacity.

In the recent case (Thomas v. Foskett) the Plaintiff suffered a shoulder injury in a collision and sued for damages.  At trial, some 5 years later, a jury awarded the Plaintiff damages including non-pecuniary damages of $15,000, $16,308 for loss of future income earning capacity and $20,336 for costs of future care.

The Plaintiff appealed the non-pecuniary assessment arguing that the findings of needing future medical treatment and having a diminished earning capacity are inconsistent with such a low assessment of non-pecuniary damages.  The Court of Appeal agreed, set aside the jury’s award and substituted an assessment of $60,000 for non-pecuniary loss.  In reaching this result the court provided the following reasons:

[63]         I agree with the appellant that to award the MRI expenses, costs of future care, and damages for future loss of earning capacity, the members of the jury must have found that the appellant sustained an injury to her right shoulder consequential to the collision. Indeed, a June 2017 orthopaedic assessment commissioned by the respondents confirmed, at the very least, a “soft tissue strain” in the right shoulder “related to the date of [the] accident”. The respondents’ expert, Dr. Marks, diagnosed the appellant with “cervical strain and right shoulder strain”.

[64]         I also agree with the appellant that the awards for costs of future care and future loss of earning capacity reflect a determination, by the jury, that the appellant’s shoulder pain subsisted at the time of trial, was detrimentally affecting her functional capacity, and will continue to do so into the future. By the time of trial, the appellant’s other injuries had effectively resolved themselves. She confirmed that fact in cross‑examination…

[78]         In my view, a proportionate and just award for non‑pecuniary damages in this case would be $60,000. Unlike Riley, the appellant’s injuries did not necessitate that she be away from work for 14 months to recover from her injuries. That is a material difference. The appellant was able to manage through her injuries. Mr. Riley also experienced psychological and cognitive symptoms associated with his injuries, and felt he was unable to cope with his work, leading to his retirement. That is not an issue in this case.

[79]         However, it is indisputable that at the time of trial, more than five years post‑collision, the appellant continued to suffer from right shoulder pain. When testifying, she detailed how that injury has affected her daily life. If sitting, she must frequently move around and stretch out the shoulder to manage the pain, including possible headaches. She struggles with housekeeping and yard work. She has reduced her driving because of the need to grip the steering wheel and shift with her right arm. She cannot carry large or heavy items or pick many things up with her right arm. She cannot do some of the recreational activities she previously enjoyed.

[80]         The appellant was not shaken on this evidence in cross‑examination. The limitations she described were independently confirmed by her treating physician and by Ms. Craig. The appellant’s son testified that his mother is “definitely a lot different” since the collision. “It’s, like, she’s struggling now rather than thriving.”

[81]         On this evidentiary foundation, and in light of the awards for costs of future care and loss of earning capacity, $15,000 to compensate for the appellant’s pain, suffering and loss of amenities of life is plainly unreasonable and represents one of those rare instances when interference with the award on appeal is warranted. Accordingly, I would accede to this ground of appeal.