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Judicial System Not to Operate Like a Lottery

In the recently published decision of Evans v. Metcalfe, 2011 BCCA 507, Mr. Justice Hall affirmed 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, and that allowing “unadjusted outlier awards” to satnd could lead to an undermining of public confidence in the courts through a perception that the judicial system operates “like a lottery”.


A Need for Consistency in Jury Awards for Injury Victims


In the case under appeal, the jury awarded the plaintiff $6,000 for special damages and $10,300 for past loss of income. In spite of that, the jury awarded only $1,000 in non-pecuniary damages (pain & suffering). The Court of Appeal held that the award for non-pecuniary damages was clearly out of step with the other amounts awarded to the plaintiff and not in keeping with the evidence presented at trial. In the result, the Court of Appeal ordered a new trial.


Writing for the three judge panel, Justice Hall said the following:


[8] …there must be some measure of consistency in jury awards or the trial process may come to be viewed as something of a lottery…


[9] In the present case, there was a body of medical evidence that did not depend on the veracity or reliability of the appellant plaintiff or her primary treating physician that was supportive of the thesis that she continued to suffer from the sequelae of the April 2006 accident throughout 2006 into the early months of 2007. As I earlier noted, the quantum of the awards made by the jury under the heads of past income loss and special damages are reasonably susceptible of the interpretation that the jury made a factual decision that the effects of the accident did persist for about nine months post-accident.


[10] In my respectful opinion, these findings of the jury as reflected in their pecuniary awards make the award for non-pecuniary damages very anomalous. It is not impossible that the jury may have taken a quite censorious view of the appellant because of her economic circumstances or because of her conduct in importuning the physician to give her a note in aid of possible financial advantage. These would not be judicious reasons for denying her an appropriate award of non-pecuniary damages. As I observed, there was a body of credible evidence that would support an award under this head significantly greater than the amount awarded at trial. While there can be considerable variance in awards made under this head as the cases cited to us demonstrate, this award seems almost derisory.


[11] Generally this Court must be very restrained in any interference with a jury disposition as a consistent body of precedent makes plain. However, I have been persuaded that this is one of those rare cases where the interests of justice make intervention appropriate. The degree of anomaly in the respective awards, coupled with a very real possibility of the triers of fact taking an unduly severe view of the appellant’s conduct unrelated to her physical condition persuade me that the award made by the jury for non-pecuniary damages cannot stand.


[12] We were invited by counsel for the appellant to either fix awards under various heads ourselves, or refer the matter to the trial judge for assessment. The latter course does not commend itself to me for two reasons: the judge has previously expressed certain fairly strong preliminary views and it is of course the right of the defendant respondent to choose the forum of a jury if so minded. As to the possible remedy of this Court adjusting upward awards made by the jury, this is very much dependent on factual issues, including particularly issues of credibility. Historically this Court has been properly reluctant to engage in factual determinations in this class of matter. In my view, the only appropriate resolution of this case is to set aside the order made at trial and order a new trial and I would so order.


(written by Charles D. Jago)

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