Tag: Jury Charge

BC Court of Appeal Discusses Jury Instructions in Trip and Fall Lawsuits


(Update March 22, 2012The case discussed below was subsequently dismissed at the new trial ordered by the Court of Appeal.  You can access the reasons for judgement here)
Reasons for judgement were released this week by the BC Court of Appeal ordering a new trial following the dismissal of a trip and fall lawsuit.
In today’s case (Lennox v. New Westminster (City)) the Plaintiff was seriously injured while walking on a municipal sidewalk.   She alleged that she tripped because of “a discrepancy in the elevation between two panels of the sidewalk that had apparently shifted due to the roots of a large tree“.  She claimed the City was negligent and sued for damages.  A jury dismissed her case.  The Plaintiff appealed arguing the verdict was not reasonable and that the jury was misdirected by the trial judge.
The BC Court of Appeal found that while there evidence to justify the Jury’s verdict, a new trial was warranted because of the presiding judges directions to the Jury.  Specifically the judge charged the jury that “The plaintiff must prove that the city’s employees negligently carried out their responsibilities under the city’s written and unwritten inspection and maintenance policies.
The BC Court of Appeal found this to be a fatal error as either a breach of the City’s written or unwritten policies could have constituted negligence.  In a 2-1 split the BC Court of Appeal ordered a new trial with the majority providing the following reasons:
[27] The question chosen by the trial judge in this case referred to the respondent’s written and unwritten policies in a conjunctive manner, leaving the potential for members of the jury to believe that the plaintiff’s case would have to fail, unless she proved a breach of both as opposed to either policy.  It was unnecessary for the appellant to establish a breach of both the written and the unwritten policies in order to succeed in her claim in negligence, and a misdirection amounting to an error in law results, if that is what the jury question required…
[34] While it is true that the trial judge instructed the jury on more than one occasion that the appellant’s case was argued in the alternative; that she asserted a breach of both the written and the unwritten policies, I do not consider that his summary of the appellant’s alternate theories of her case overcomes the potential that the single question asked of the jury may have caused them to conclude that the appellant had to establish breaches of both the written and the unwritten City policies in order to succeed…

As was the case in Laidlaw, the trial judge’s charge did not mirror the wording in the single question asked of the jury, and again, as in Laidlaw, the charge was inconsistent, here, as to whether the plaintiff needed to prove a breach of one or both of the respondent’s policies.  By the time the jury was completing its deliberations, their focus must have been on the question, which is clear in its terms but, unfortunately, had the potential to mislead them as to what the plaintiff needed to prove in order to succeed.  It is impossible to determine with confidence that the jury had understood its task in deciding if the respondent’s employees were negligent in carrying out their operational responsibilities in accordance with either, as opposed to both of the respondent’s written and unwritten policies.

[40] I would therefore accede to the first ground of appeal, and order a new trial.

Madam Justice Smith, in dissenting reasons, stated the charge was nothing more than a “latent ambiguity” and that a new trial was not warranted.

BC Court of Appeal Overturns $12 Million Jury Verdict

In a not unexpected development, the BC Court of Appeal released reasons for judgement today (Ciolli v. Galley) overturning a Jury Verdict awarding just over $12 Million dollars in damages to a Plaintiff who was injured in three separate motor vehicle collisions.
Following the Jury verdict the Defendants applied for a mistrial but the presiding Judge dismissed the defence motion.  The Defendants appealed the Jury Verdict arguing, amongst other reasons, that the trial judge failed to give appropriate instructions to the jury.  The BC Court of Appeal agreed and ordered a new trial.  In doing so the Court provided the following reasons:

[21]         As mentioned earlier, the defendants contend on appeal that the trial judge erred in refusing to grant the mistrial application and in failing to give an even-handed and fair summary of the evidence to the jury; and that the jury’s awards were without foundation or wholly out of proportion to the plaintiff’s losses.  I have already noted that the trial judge’s many references to the damages to which Ms. Ciolli was “entitled” may well have led the jury to be confused about the question of causation and about their duty to determine which of the plaintiff’s claims, if any, were properly attributable to the car accidents and in connection with the costs of future care, which were medically justified.  Fairness also required that in connection with loss of income-earning capacity and future care costs, the jury be instructed as to the need to apply a discount rate in order to assess the present value of the awards for future contingencies, and of course on the need to reduce such awards to reflect that they did represent contingencies rather than certain losses.  The law is clear that a trial judge’s failure to so instruct a jury constitutes error: see, e.g., Bell v. Stubbins (1991) 7 B.C.A.C. 177 at paras. 10-17; Halliday et al. v. Sanrud (1979) 15 B.C.L.R. 4 (C.A.) at 9.

[22]         It is also clear that the awards for non-pecuniary damages and loss of income-earning capacity were wholly out of proportion to what was justified by the evidence before the Court.  The non-pecuniary award of $327,000 would have been justified only had the plaintiff suffered a truly catastrophic injury, but the jury was not instructed to this effect.  (Counsel for Ms. Ciolli rightly acknowledged before us that her injuries were not catastrophic.)  With respect to loss of income-earning capacity, as Mr. Gunn submits, the sum of $5,600,000, if calculated over 23 years (i.e., until the plaintiff reaches age 65), constitutes an award of $243,478 per year.  It did not reflect the fact that the award is for a contingency rather than a certain loss, nor a discount rate required to represent the present value of the loss.

[23]         The foregoing errors are more than sufficient to warrant our interference with the jury’s award and to order a new trial.

Paragraphs 24-31 of the Judgement are also worth reviewing for the Court’s ‘obiter‘ discussion of when a trial judge should and should not declare a mistrial following an inordinately high Jury Verdict.

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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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