Tag: Chronic Pain Cases

Jury Delivers "Shockingly Unreasonable" Award in BC Injury Claim


Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, in what the trial judge described as a ‘shockingly unreasonable‘ verdict by a Jury.
In today’s case (Evans v. Metcalfe) the Plaintiff was injured in a BC motor vehicle collision.  Fault was admitted by the other motorist.  The case went to trial before a Jury with Mr. Justice Romilly presiding as the trial judge.
The Plaintiff led evidence that, as a result of her accident related injuries, she was disabled from working and sought damages accordingly.  The Plaintiff’s out of pocket expenses for alleged accident related treatments exceeded $25,000.
The Jury largely rejected the Plaintiff’s claim and assessed total damages at $17,300 which included $1,000 for pain and suffering, $6,000 for special damages and $10,300 for past loss of income.  The Jury then reduced this award by 15% for ‘failure to mitigate‘ for a total award of $14,705.
The Defendant asked the Judge to enter Judgement based on the Jury’s award.  The Plaintiff argued that the Jury’s award was “unreasonable” and that the verdict should be set aside with a new trial ordered.
Mr. Justice Romilly agreed that the Jury was wrong in reducing the damages by 15% for failure to mitigate but concluded that other than increasing the judgement to the original $17,300 any changes to the Verdict should be left to the Court of Appeal.
Jury’s in BC do not give any reasons for their award and they cannot be contacted after they are discharged to gain insight into their deliberations.  Accordingly it difficult for the Court of Appeal to know how a Jury reaches a particular verdict and feedback from the trial judge is welcome.  Anticipating that this matter would be appealed Mr. Justice Romilly voiced disagreement with the Jury’s findings and provided the following criticism:

[51]        Although it has not been specifically requested of me, I feel it necessary to comment on the reasonableness of the jury’s verdict.  In doing so I am taking in mind both the utility of such comments expressed by Southin J.A. in Johnson, and the limits to them as stated by Garson J.A. in Boota.

[52]        In my opinion, as a long-time member of the bench, the jury’s award in this case has surpassed the level of “shockingly unreasonable”.  The amount of damages awarded for non-pecuniary damages represents a fraction of what was sought.  Whatever the reason, the jury felt the need to punish Ms. Evans in a way that does not accord with the law.  In my judgment I have already discussed some failures of the jury to appropriately apply the law to the actual evidence; I believe that these failures (and more) are further manifest in their wholly disproportionate award.  No jury reviewing the evidence as a whole and acting judicially could have reached the verdict issued in these proceedings; the evidence cannot support the verdict.

BC Court of Appeal Discusses Pain and Suffering Damages for Fibromyalgia; Overturns Trial Award

Reasons for judgement were released today by the BC Court of Appeal discussing an appropriate amount for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for accident related Fibromyalgia.
In today’s case (Poirer v. Aubrey) the Plaintiff was injured in a 2006 rear-end car crash in BC.  She suffered injuries which resulted in chronic pain.  There was evidence that some of the effects of her injuries were likely permanent.  At trial the Plaintiff was awarded just over $220,000 in total damages for her injuries and loss (click here to read my summary of the trial judgement).
The Plaintiff appealed arguing that the damage award was low and the trial judge made an error in finding that there was a ‘real and substantial possibility…that (the Plaintiff’s) pain and discomfort will be relieved and her functioning improved“.  The BC High Court agreed that the evidence did not support such a finding and that the trial award was low.  The Court substituted an award of $528,503 which included an increase in the non-pecuniary damages award of $60,000 to $100,000.
In assessing the Plaintiff’s non-pecuniary loss for chronic pain from soft tissue injuries at $100,000 the BC Court of Appeal noted as follows:

[25]         I consider the evidence establishes that, as the judge said, there is a “real and substantial possibility” Ms. Poirier’s injury will prove to be permanent.  There is no cure.  There is treatment for her condition, but the prospect of her pain being relieved to a significant degree is indeed guarded.  She is unlikely to ever be pain free and can at best hope that, with continued treatment, she may in time achieve a sufficient reduction in her pain and increase in her functioning that would permit her to regain some of the enjoyment of her life she has lost and to undertake part time employment.

[26]         Ms. Poirier cites three awards in particular that she says reflect what plaintiffs who have suffered somewhat comparable non-pecuniary losses to hers have been awarded: Hooper v. Nair, 2009 BCSC 862; Barnes v. Richardson, 2008 BCSC 1349, aff’d 2010 BCCA 116; and Djukic v. Hahn, 2006 BCSC 154, aff’d 2007 BCCA 203.  The respondents cite Heartt v. Royal, 2000 BCSC 1122; Mowat v. Orza, 2003 BCSC 373; and Esau v. Myles, 2010 BCSC 43.  These awards reflect a broad range: those cited by the respondents are $50,000 to $70,000; those cited by Ms. Poirier are $85,000 to $125,000.  I consider Ms. Poirier’s loss to be more consistent with the losses in the awards she cites.  Of particular significance is the permanent nature of her injury that causes her ongoing debilitating pain, the effect it has had and will continue to have on the enjoyment of her life, and the uncertainty there is that her condition will in time improve even to the point of permitting her to return to work part time.

[27]         I would set aside the judge’s award of $60,000 for non-pecuniary loss and substitute an award of $100,000.

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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