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TYPES OF DAMAGES - For personal injuries - Special damages - Expenses and expenditures

Monday, December 21, 2020 @ 7:08 AM  

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Appeal by the plaintiff from a jury award for special and non-pecuniary damages in a personal injury action. She also argued the trial was unfair because the judge erred in his instructions to the jury and the respondents’ trial counsel also made unduly prejudicial comments to the jury. The appellant, then 43, was injured in a 2013 motor vehicle accident. She worked as a cashier and receptionist at a community centre and as a bookkeeper. She suffered soft tissue injuries that had resolved by the time of trial in 2018 except her right shoulder pain. A 2015 MRI showed a superior labral tear. There were also indications of tendinosis, bursitis and joint arthrosis. The appellant worked continuously from the date of the collision to trial, missing only two days of work. A significant issue before the jury was whether the appellant’s ongoing shoulder pain and related physical limitations were attributable to the collision. The jury awarded the appellant $53,239 in damages consisting of $15,000 for non‑pecuniary damages, $20,336 for costs of future care, $16,308 for future loss of earning capacity and $1,395 in special damages. The only costs in issue involved the MRI and gym membership. For special damages, the jury awarded the precise cost of the MRI.

HELD: Appeal allowed. The awards for special and non‑pecuniary damages were set aside and increased to $2,045 and $60,000 respectively. The trial was not unfair. The judge corrected the problematic comments regarding the appellant’s proposed expert evidence in the opening instructions the next morning and used strong language in doing so. He emphasized the importance of the jury keeping an open mind to the appellant’s expert witnesses. He also made it clear that the jurors were not to discuss the case with third parties. The judge further ameliorated any related prejudice in his final instructions. The judge’s instructions on special damages were consistent with the closing submissions of the parties and made clear to the jurors that the appellant was entitled to the MRI expense if they were satisfied that it arose because of the accident. The instructions on future loss of earnings provided the jury with the proper analytical tools for assessing the appellant’s future loss of earning capacity. It was obvious from the special damages award that the jury failed to appreciate that although the parties had agreed the appellant was entitled to $650 for her chiropractic and physiotherapy expenses, that amount had to form part of the verdict for the appellant to collect. The $15,000 for non‑pecuniary damages was plainly unreasonable. Considering that the jury awarded 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. The awards for costs of future care and future loss of earning capacity reflected a determination by the jury that the appellant’s shoulder pain subsisted at the time of trial, was detrimentally affecting her functional capacity and would continue to do so into the future. It was indisputable that at the time of trial, more than five years post‑collision, the appellant continued to suffer from right shoulder pain. The limitations she described were independently confirmed by her treating physician and physiotherapist.

Thomas v. Foskett, [2020] B.C.J. No. 1854, British Columbia Court of Appeal, M.E. Saunders, E.A. Bennett and J. DeWitt-Van Oosten JJ.A., November 20, 2020. Digest No. TLD-December212020002