Plaintiffs and Juries: Just How Far Can They Go Anyway?

Two recent decisions of the B.C. Court of Appeal have provided a mix of good and bad news for insurers, regarding the conduct of Plaintiff's counsel and amounts of damage awards, respectively.

First the bad news...

In Boyd v. Harris (2004 BCCA 146), a jury awarded the Plaintiff almost $700,000 in total damages, including $225,000 for non-pecuniary damages and $340,000 in loss of future earning capacity (in addition to $85,000 for past wage loss).

The Defendant appealed, on the ground that the non-pecuniary and future earning capacity awards were excessive. The threshold test which appellate courts apply in these types of cases are whether the award is "inordinately high", "unreasonable or unjust" or "wholly out of proportion".

Regarding the award of non-pecuniary damages, Mr. Boyd's injuries consisted of a fractured neck, permanent spinal cord injury, and other losses. He was hospitalized for 6 weeks, and wore a halo brace for another 9 weeks, When he was discharged, he went to live with his girlfriend for 3 months, but has lived alone, and unassisted, since then.

Mr. Boyd did not suffer any serious head injury, permanent cognitive damage or paralysis. His continuing spinal cord injuries do cause localized muscle dysfunction and lack of proper motion, and there was medical evidence of possible future deterioration, and development of painful cysts, which could require further surgery. He also testified to unusual reactive reflexes in his legs, increased sensitivity in his arms and legs, as well as pain and some loss of strength in his shoulders and arms, and lack of coordination and muscle tone, as well as tremors in his legs.

On appeal, the Defendant argued for a reduction from $225,000 to a non-pecuniary award in the range of $80,000 to $100,000. Defence counsel pointed out that, since the 1978 S.C.C. trilogy (Andrews v. Grand & Toy, etc.), judges have not awarded more than $200,000 in non-pecs unless there was either severe brain or spinal injury resulting in profound cognitive impairment or physical paralysis.

Adjusted for inflation, the trilogy rough upper limit is now about $300,000.

The Court also acknowledged that, in the most factually similar cases that were cited to it, the non-pecuniary awards had been in the range of $80,000 to $100,000. Indeed, that was precisely the range advocated by the Defendant Appellant. The Court also acknowledged that "the upper end of the conventional range of non-pecuniary damages" awarded by judges in similar cases was between $100,000 and $150,000 to $160,000.

However, consistent with the law regarding charges to the jury, none of such precedents had been cited to the jury, at trial. Moreover, since damages are a matter of fact, and therefore for the jury to find (as opposed to matters of law, for the trial judge to adjudicate upon), the Court of Appeal could not say that the non-pec award revealed a "palpable or overriding error". The $225,000 was therefore allowed to stand.

Among other things, that was notwithstanding a reduction from $200,000 to $90,000, in another decision by the Court, less that four years before this appeal in (Unger v. Singh, 2000 BCCA 94). The different result in this case is also noteworthy in light of other comments in the reasons for judgement of the B.C.C.A. Writing for the unanimous majority, Justice Smith acknowledged that "appellate courts have a responsibility to moderate clearly anomalous awards in order to promote a reasonable degree of fairness and uniformity in the treatment of similarly-situated plaintiffs. As well, outlier awards, if not adjusted, could lead to a perception that the judicial system operates like a lottery and to an undermining of public confidence in the courts."

The Court's analysis of the case law, including its decision in Unger v. Singh, are certainly suggestive that this Plaintiff had received just such an "anomalous" or "outlier" award for non-pecs. But it upheld the same nonetheless!

With respect to future earning capacity, the award of $340,000 was arguably excessive because, applying the same multiplier as the Plaintiff's economist to the past income award of $85,000 would have yielded only about $215,000. That was, therefore, suggested as an alternative by the Defendant, on appeal, but nevertheless rejected by the Court.

Where does all of that leave insurers, and defence counsel?

Well, as indicated elsewhere in the Boyd reasons:

A cynical translation of such judicial commentary might be: insurers are going to remain under pressure to pay more in order to settle jury cases. Not only do defendants face the risk of higher judgments than in front of a judge alone, but they will usually end up paying the extra costs as well. Moreover, as we have just seen only in rare cases will the Court of Appeal reduce a higher than "conventional" award.

Now the good news...

In de Araujo v. Read (2004 BCCA 267), the jury's verdict was overturned, and a new trial ordered, on the basis that the Trial Judge should have declared a mistrial (after first offering the Plaintiff to continue her trial without the jury).

Why? Because the conduct of her counsel had been so prejudicial to the Defendant that it could not be cured in the Judge's charge to the jury. However, the Court of Appeal's decision was split and the dissenting judge would have allowed the jury's award of about $160,000 in damages to stand.

The majority reasons were written by Justice Thackray, and they establish a useful precedent. Namely, by a 2:1 margin, the B.C.C.A. has held that,

The dissenting judge would have held that,

If you think the latter test sounds familiar, you're right. The dissenting judge in de Araujo was the same Justice Smith who wrote the reasons in Boyd, discussed above. So, if the third judge had agreed with his reasons in this case, there would not have been a retrial, regardless of how inappropriately Ms. de Araujo's counsel had presented her case to the jury.

All three judges in the de Araujo case agreed that "there was serious impropriety in the conduct of Plaintiff's counsel at trial." This was apparent in his opening statement and closing address, as well as other points in the proceedings.

In his opening, counsel for the Plaintiff began by personalizing the case, asking jury members to put themselves in his client's position: "Imagine that you are 22 years of age. You've put in four hard years of university... You hear the screech of rubber... you feel and hear an explosion... your car is struck, sending you rocketing forward", etc., etc.

Referring to the Plaintiff by her first name, "Estela", he told that jury that "we are here today to ask for your help. We are in this together... We are here because [the Defendant has not accepted responsibility], etc. The defence had actually admitted liability.

Plaintiff's counsel then went on to describe "how these cases are sometimes defended...", that "lawyers for defendants try to distract juries from the real issues..., thus fooling a jury into thinking that [the plaintiff] is not deserving or to be trusted." He also described how "the defence" hired "investigators to spy on Estela." No evidence was ever lead to the latter effect.

He then concluded his opening by purporting to make a pact with the jury, "to present the evidence [to you] in a complete, fair and courteous way."

In his closing address, Plaintiff's counsel referred to that pact, after first having thanked the jury members, on behalf of "Estala", for taking "two weeks... out of your lives to be here." He went on describe the defence's medical expert as a "professional disgrace... whose bias, ...arrogance and ...neglect were and insult to this courtroom".

He then returned to one of his opening themes, saying:

What are the lessons to be learned from all of this? Well,

1. 1. Just because lawyers get away with making inflammatory comments to juries on American television, doesn't meant that will fly in a Canadian courtroom;

2. 2. Misconduct by counsel in B.C. courts may result in a mistrial, whether it appears to have caused actual prejudice to the other side or not; and

3. 3. Judges are human, too - they disagree with one another, and even make their own mistakes from time to time (which courts of appeal do sometimes correct).

Readers with questions are invited to contact Neo Tuytel by phone at 604-643-3180, or by email at njt@cwilson.com.