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Damages - Assessment of damages - Measure of damages - Limiting factors - Pre-existing conditions

Thursday, November 24, 2016 @ 7:00 PM  


Appeal by the plaintiff, Jugmohan, from a jury award of zero damages in respect of her action against the defendants, Royle, Naccarato and Bascom. Following an automobile accident involving the defendants, the plaintiff underwent knee replacement surgery and rotator cuff repair. A jury trial in a personal injury action resulted in a verdict that the plaintiff suffered zero damages from the accident. The trial judge ruled that the plaintiff’s claim for non-pecuniary loss was statute-barred, as her injuries did not fall within the exceptions to statutory immunity. The plaintiff appealed on the basis the jury verdict was perverse. She submitted that the trial judge erred in instructing the jury that an award of zero damages was available if it found that the accident did not cause any new injury, or exacerbation of any pre-existing injury. She submitted that the trial judge disregarded medical evidence that supported her position on the threshold motion, as the expert evidence to the contrary was partisan and based on a superficial review of the medical evidence.

HELD: Appeal dismissed. On the evidence, it was open to the jury to conclude that the plaintiff’s injuries were not caused by the accident and therefore the plaintiff was not entitled to any damages. Expert evidence supported the jury’s finding that the plaintiff’s post-accident surgeries were attributable to her pre-accident conditions of osteoarthritis and degenerative issues with her knee and shoulder. The charge to the jury was clear and was agreed to by the plaintiff’s trial counsel after the trial judge reworded it to his satisfaction. The charge did not leave any misapprehension regarding the applicable principles and duties for the jury. There was no basis for finding the trial judge failed to consider material evidence. Ample evidence supported the trial judge’s conclusion that the threshold was not met, particularly in light of the jury award.