IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151126

Docket: M103503

Registry:
Vancouver

Between:

James Harder

Plaintiff

And

Lee Poettcker

Defendant

Before:
The Honourable Mr. Justice J. Sigurdson

Reasons for Judgment

INTRODUCTION

[1]            
Following the delivery of a civil jury verdict on September 22, 2015, and
after the jury was discharged, the defendant applies for judgment in accordance
with the verdict.

[2]            
The plaintiff opposes the application on the basis that the answers to
the jury questions were conflicting and judgment cannot be entered. The
plaintiff says, based on Balla v. ICBC, 2001 BCCA 62 [Balla], and
Kalsi v. Gill, 2014 BCSC 1833 [Kalsi], that under Rule 12-6(7) of
the Supreme Court Civil Rules, where the answers to the questions are
conflicting, the action must be retried. The plaintiff, who had requested the
trial by jury, submits that the retrial should take place before me pursuant to
R. 12-6(11).

[3]            
The defendant says that the verdict is not conflicting. His position is
that the jury intended to give a very modest award and that, although no award
was given for non-pecuniary damages but a modest award was given for special
damages and past loss of housekeeping capacity, the verdict is nevertheless not
in conflict. The plaintiff says that the verdict must be assessed in context
and as a whole to determine whether it is in fact in conflict.

[4]            
The defendant says that even if the verdict is in conflict on damages, the
decision on liability should nevertheless stand and judgment on that issue
should be entered. If there is to be a retrial on damages, or both liability
and damages, the defendant says that the retrial should be in the mode of the
original trial and that is before a jury.

[5]            
If judgment cannot be entered, although the defendant says the retrial
should be by jury, he does not argue that I do not have jurisdiction to hear
the retrial. However, the defendant’s counsel says that a jury trial should be
ordered as it was the mode of trial that she prepared for and presented.

BACKGROUND

[6]            
The plaintiff James Harder sued the defendant Lee Poettcker for damages for
negligence arising out of a motor vehicle accident that occurred when the
defendant, making a left turn in a parking lot, struck the rear end of the plaintiff’s
vehicle which was backing out of a parking spot in the mall. At trial,
liability and damages were at issue.

[7]            
After a nine-day trial, the questions given to the jury were answered as
follows:

QUESTIONS
FOR JURY

1.     Was there negligence on the
part of the Defendant that caused or contributed to the damage suffered by the
Plaintiff?

Answer:                        Yes √ No
□

(If the answer to Question 1 is “No”, you do not need to
answer the questions listed below. If the answer to Question 1 is “Yes”,
proceed to answer the following questions.)

2.    
If the
answer to Question 1 is “Yes”, was there negligence on the part of the
Plaintiff that caused or contributed to the occurrence?

Answer: Yes √ No □

3.     If the answers to Questions 1
and 2 are both “Yes”, and there was therefore negligence on the part of both
parties, what was the percentage or degree of the negligence of each?

Answer:                         Plaintiff               85%

Defendant  15%

Total 100%

4.     Disregarding the apportionment
of negligence you made in response to Question 3, what amount, if any, do you
award to the Plaintiff for the injuries caused or contributed to by the
February 13, 2009 accident under the following heads of damage?

5.   
Non-Pecuniary Damages

For his past and future pain, suffering, loss of amenities, loss of
housekeeping capacity and loss of enjoyment of life caused or contributed to by
the accident

$_______0________(5)

6.    Past Pecuniary
Damages

a)    
Special Damages (physiotherapy,
medicine, surgery, MRI, parking). For his out of pocket expenses from February
13, 2009 to today (Tab 6)

$_____1600.00____(6)(a)

b)    
Labour portion of
receipts for past loss of housekeeping capacity from February 13, 2009 to today
(Tab 7) Cash paid (no receipts) for past loss of housekeeping capacity from
February 13, 2009 to today (Tab 8)

$______3500.00___(6)(b)

7.    
Future Pecuniary .Damages

(a) Loss of future Housekeeping Capacity. For reduced
capacity from September 22, 2015 onwards

$________0______(7)(a)

(b) Cost of Future Care

$________0_______7(b)

8.    Total of 5,
6(a) + 6(b) + 7(a) + 7 (b

$_____5100.00_______

[8]            
The question is whether judgment on the verdict can be entered or
whether judgment cannot be pronounced on the findings and the action must be
retried. This question arises because although the jury awarded nothing
for non-pecuniary damages for “past and future pain, suffering, loss of amenities,
loss of housekeeping capacity and loss of enjoyment of life caused or
contributed to by the accident”, it awarded $1,600 for special damages and $3,500
for past loss of housekeeping capacity from the accident to the date of trial.

[9]            
The relevant rules are Rules 12-6(7), 12-6(10) and 12-6(11):

12-6(7)  If, after any redirection the court
considers appropriate, a jury answers some but not all of the questions
directed to it, or if the answers are conflicting, so that judgment cannot be
pronounced on the findings, the action must be retried.

12-6(10)  A retrial under subrules (7) to (9) may
take place at the same or subsequent sittings as the court may direct.

12-6(11)  If, for any
reason other than the misconduct of a party or the party’s lawyer, a trial with
a jury would be retried, the court, with the consent of the party who required
a jury trial, may continue the trial without a jury.

[10]        
In Balla, at trial the jury found the plaintiff had been injured
in the accident but awarded the plaintiff nothing for non-pecuniary damages or
cost of future care but awarded the plaintiff $1,000 for special damages. The
trial judge did not find that the verdict was in conflict. The Court of Appeal
disagreed.

[11]        
Mackenzie J.A. described the tests for scrutiny of a jury verdict:

[9]        In my view, there are two tests for scrutiny of a
jury verdict, apart from errors of law. The first is stated by Rule 41(2) of
the Rules of Court as follows:

41(2) Where, after any redirection
the court thinks appropriate, a jury answers some but not all of the questions
directed to it, or where the answers are conflicting, so that judgment cannot
be pronounced on the findings, the action shall be retried.

If “the answers are conflicting” the trial judge must direct
a retrial.

[10]      The second test is the Nance
test, whether the sum awarded is inordinately low or inordinately high. The
trial judge has jurisdiction to apply the first test, pursuant to Rule 41(2),
but the only remedy available (subject to rule 41(6)) is a retrial. The Nance
test is a test of appellate review only and is not within the jurisdiction of
the trial judge: Leblanc v. Penticton (No. 2) (1981), 28 B.C.L.R.
179 (B.C.C.A.). The trial judge may not vary the jury’s award for Nance
reasons.

[12]        
In finding that the trial judge was in error in concluding that the findings
of the jury were not in conflict, Mackenzie J.A. said:

[12]      In my respectful view, the learned trial judge was
in error in his conclusion that the findings of the jury were not in conflict.
The trial judge distinguished the decision in Stewart as “case specific”.
With respect I do not agree. It is illogical to conclude that a plaintiff was
injured and suffered out of pocket expenses but did not sustain any pain,
suffering and loss of enjoyment, however transitory, as a result of the injury.
The finding of injury and the award for special damages cannot be reconciled.
Without any award for non-pecuniary damages, the answers present a clear
conflict. The reasoning in Stewart is not distinguishable.

…

[14]      I would not extend the
application of Stewart beyond cases where the jury has made no award (or
a token award clearly intended to be nominal) for non-pecuniary damages, while
having made a finding of injury caused by the accident or an award of pecuniary
damages consistent only with a finding of injury. If, conversely, the jury has
made an award for non-pecuniary damages and the issue is disparity between that
award and awards under other heads of damage then the issue is one that can
only be addressed on appeal under Nance.

[13]        
A similar situation to the case at bar occurred in Kalsi. In that
case liability was also in issue. The jury’s verdict was that each party was
50% at fault and although the jury awarded the plaintiff nothing for non-pecuniary
damages, future pecuniary damages or loss of homemaking capacity, they awarded
the plaintiff $12,000 in past wage loss and $8,000 in special damages. Mr. Justice
Gary Weatherill, while noting that the court should strive to give effect to a
jury’s verdict, said he could not do so when the jury’s verdict was internally
in conflict. Justice Weatherill said at paras. 25 and 26:

While the jury is the judge of issues such as credibility, it
was not open to them, after making the findings as they did regarding special
damages and past loss of wages, to fail to make any award for non-pecuniary
damages (Balla). Such a result was inconsistent.

The basis of any tort action
rests on a finding that the plaintiff suffered an injury. It is illogical to
conclude that a plaintiff was injured and suffered past wage loss and special
damages but did not sustain and pain, suffering, or loss of enjoyment, no
matter how transient. (Balla, Stewart).

[14]        
Weatherill J. addressed whether to pronounce judgment on some of the
issues. In the case before me, the defendant argues that even if I find the verdict
to be inconsistent I should nevertheless enter judgment for the defendant
on the 85/15% apportionment of liability. Justice Weatherill in similar
circumstances held otherwise:

[33]      I considered whether Rule 12-6(8) may be of
assistance to the parties. The heading for the rule is “Only partial
judgment possible on jury findings”. Given that the jury’s verdict was a
finding of 50/50 liability, I considered whether judgment could be entered on
the liability issue and a new trial ordered on the damages issue. On
further consideration, I have determined that it cannot. The effect of making
such an order would be to sever the issues of liability and damages with each
issue being decided by a different trier of fact. While a trial judge has
discretion to order severance of issues (Rule 12-5(68)), severance should only
occur when there are extraordinary, exceptional or compelling reasons to do so
and only when the issue to be tried separately is not interwoven with other
issues (King v. On-Stream Natural Gas Ltd. Partnership, [1990]
B.C.W.L.D. 1596 (S.C.)). Further, severance of issues of liability and damages
is particularly undesirable (Dosanjh v. Romanda, [1974] 6 W.W.R. 559
(B.C.S.C.)). Unless compelling reasons exist to do so, courts generally
are reluctant to order severance of liability and damages. That is especially
so where, as here, the plaintiff’s credibility is an important issue in the
case (Beddow v. Megyesi (1992), 63 B.C.L.R. (2d) 158 (S.C.)).

[34]      In my judgement, Rule 12-6(8) does not permit the
severance of the issues of liability and damages. Rather, Rule 12-6(8) is
intended to fill a hole where a particular claim in the prayer for relief in a
notice of civil claim has not been addressed by the jury but others have. That
is not the case here.

[35]      Because the plaintiff’s
credibility is critical to the determination of both liability and damages, those
issues cannot be severed.

[15]        
The defendant in the case at bar challenges the assertion that the
verdict was conflicting or contradictory. The defendant says that it was open
to the jury to draw inferences from the evidence to reach the verdict that they
did. This the defendant says includes that the plaintiff’s back was actively
painful at the time of the accident, that the accident did not cause the need
for an L3-4 laminectomy in July 2009, and that the plaintiff was suffering
fibromyalgia before the accident and the accident did not cause or contribute
to the fibromyalgia. I do not understand the plaintiff to argue that those
verdicts were not available on the evidence, but what the plaintiff argues is that
the special damages award (and the past housekeeping award) was a pecuniary
award upon injury that was inconsistent with a zero award for non-pecuniary
damages.

[16]        
However, the defendant says that upon examination the jury’s answers are
not internally inconsistent when viewed as a total damage award and in light of
the way the plaintiff framed his pecuniary claim, a claim which the defendant
says the jury largely rejected. The defendant puts his argument the following way.
The jury was instructed to round the award to the nearest thousand dollars or
nearest $100. Given that the jury’s answers show that the jury clearly
believed the plaintiff’s damages were minimal as they awarded nothing for loss
of his golden years, loss of housekeeping capacity or loss of
amenities, the jury, the defendant argues, in awarding something for past
housekeeping capacity for work others did for him, was in essence only providing
the pecuniary award, in the context of the award as a whole, as part of
compensation for what might have been non-pecuniary damages for loss of solace.
In other words, the defendant says that this analysis shows that the jury was not
finding there was no injury while at the same time awarding damages for losses
resulting from injury. The defendant says analyzing the verdict this way
shows that there is no inconsistency.

[17]        
Notwithstanding the importance of attempting to enforce a jury’s verdict
and the fact that even apart from the 85% contributory negligence award
against the plaintiff, the award was at best either very modest or nil, I am
driven to conclude that to award nothing for non-pecuniary damages but award $1,200
for special damages is an inconsistent verdict.

[18]        
Although a possible rationalization of the award is that the jury intended
to award the plaintiff say $400 for non-pecuniary damages but rounded it
down in accordance with my instructions to zero, I reject that. I find the jury
intended to award nothing for non-pecuniary damages. Even if the jury intended
to award only a nominal amount for non-pecuniary damages, I think that
would still create an inconsistent verdict: see Le v. Luz, 2003 BCCA 640.

[19]        
I also reject the submission that the jury verdict could properly be
interpreted to mean that they intended to award something for non-pecuniary
damages under a pecuniary heading.

[20]        
Although the defendant argues forcefully that there was coherence and
consistency in the jury verdict, I respectfully disagree. I find that the jury award,
although small from the plaintiff’s perspective, is inconsistent and judgment cannot
be entered on the defendant’s motion.

[21]        
The question then arises whether I can and should sever the issues of
liability and damages and enter judgment on liability for the plaintiff
including the contributory negligence finding and direct a retrial only on
damages, or whether I should order a retrial of the entire case.

[22]        
I have concluded that I am bound by the considered decision of my
brother Weatherill J. in Kalsi. Although severance may be ordered in
many cases before trial, this is not an appropriate case to have issues that
are largely dependent on credibility decided by different triers of fact.

[23]        
Given that there must be a retrial, how should that take place? A
further trial by a new jury would be months, or a year or more, ahead. The mode
of trial by jury was at the plaintiff’s request but now he wants the retrial by
judge alone. The plaintiff now consents to and requests a retrial being
conducted before me.

[24]        
I think for a number of reasons that the retrial should be before me. I
heard all of the evidence and the submissions of counsel. Given the fact
that it would be a lengthy time until the matter is retried before a jury, and given
the age of the plaintiff and the question of cost to the parties, I think it is
appropriate that I conduct a retrial based on the evidence I have heard and I
so order. Accordingly I exercise my discretion under the governing rule that
the retrial take place before me without a jury.

[25]        
I have heard the submissions of counsel and a recording of those
submissions is available to me to refresh my memory. Counsel may make
further submissions in writing on liability and damages provided they do not
repeat what I have already heard in the submissions to the jury. I ask
that the plaintiff file his argument within three weeks and the defendant his
argument within three weeks following, with the plaintiff having a right of
reply within a week. I will then hand down a written decision.

[26]        
The parties have liberty to make submissions on costs following my
written judgment.

“The Honourable Mr. Justice J.
Sigurdson”