IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141001

Docket: M144515

Registry:
New Westminster

Between:

Sukhvinder Kalsi

Plaintiff

And

Satnam S. Gill

Defendant

Before:
The Honourable Mr. Justice G.P. Weatherill

Reasons for Judgment

Background

[1]            
In this action the plaintiff claims damages for injuries sustained in a
motor vehicle collision that occurred December 13, 2010.

[2]            
A 10 day jury trial commenced before me on May 26, 2014. Liability and
damages were both in issue.

[3]            
On June 6, 2014 the jury returned its verdict finding that the plaintiff
and defendant each 50% at fault for the collision. The jury awarded the
plaintiff nothing for non-pecuniary damages, future pecuniary damages or loss
of homemaking capacity, but awarded her $12,000 in past wage loss and $8,000 in
special damages.

[4]            
Total damages awarded to the plaintiff, net of the 50% reduction for
contributory negligence, was $10,000.

[5]            
After I discharged the jury, defendant’s counsel moved for judgment in
accordance with the jury’s verdict. Plaintiff’s counsel objected on the basis
that the jury’s failure to award general damages, despite awarding damages for
past wage loss and special damages, was perverse. I adjourned the trial to allow
counsel to consider their positions.

Plaintiff’s Position

[6]            
The plaintiff seeks an order that the action be retried because the
jury’s verdict was internally conflicting and perverse. She relies on Rule
12-6(7) of the Supreme Court Civil Rules:

Judgment impossible on jury findings

(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.

[7]            
She argues that the failure on the part of the jury to award any
non-pecuniary damages, despite its award of special damages and past wage loss,
is conflicting and it would be an error of law in the circumstances to enter
judgment.

Defendant’s Position

[8]            
The defendant argues for judgment in terms of the jury’s verdict
because:

a)    
a trial judge should not interfere
with the jury’s verdict in a civil proceeding.

b)    
the jury was properly instructed
and answered all of the questions it was asked in a clear and concise fashion
and it would be an error for me to refuse to accept the jury’s verdict.

c)    
the court should strive to give
effect to the jury’s verdict and if a retrial is ordered it should be limited
to the issue of the plaintiff’s entitlement to general damages only.

d)    
it is clear from the jury’s
verdict that it did not accept the plaintiff’s claim and the only recourse the
plaintiff has is to the Court of Appeal which has the jurisdiction to vary the
jury’s results, not this court.

Discussion

[9]            
The rules at play are Rules 12-6(7) and 12-6(8) which read:

Judgment impossible on jury findings

(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.

Only partial judgment possible on jury findings

(8)        If the answers of the
jury entitle either party to judgment in respect of some but not all of the
claims for relief in the notice of civil claim, the court may pronounce
judgment on those claims and the remaining claims must be retried.

[10]        
I have been referred to a number of cases where this or similar issues
have arisen including, Balla v. ICBC, 2001 BCCA 62; Fast v. Moss,
2005 BCCA 571; ICBC v. Sun, 2003 BCSC 1175; Banks v. Shrigley,
2001 BCCA 232; Evans v. Metcalfe, 2010 BCSC 745; Wright v. Hohenacker,
2009 BCSC 536; Benek v. Pugash, 2004 BCSC 1452; Johnson v. Laing,
2004 BCCA 364; LeBlanc v. Penticton (City), [1981] B.C.J. No. 505 (C.A.);
Cuthbertson v. Moryson (1982), 34 B.C.L.R. 397 (S.C.); and McCready
v. Scott (1967), 62 W.W.R. 563 (B.C.S.C.).

[11]        
From these cases the following principles emerge:

1. The question of damages is a matter within the
province of the jury. It is a question of fact for the jury to decide.

2.         Ability to remedy an award of unreasonable
quantum of damages lies only on appeal.

3.         The trial judge cannot substitute his/her
own assessment of damages for that of the jury. In a case where a jury verdict
is internally inconsistent it is error of law to enter a verdict: Balla;
Fast.

[12]        
The defendant relies heavily on the decision of the majority of the
Court of Appeal in LeBlanc where the trial judge rejected the verdict of
the jury and entered judgment in accordance with his view of evidence.

[13]        
The Court of Appeal considered then Rules 41(2) and (3) which, for all
intent and purposes are the same as current Rules 12-6(7) and 12-6(8), and
found that the trial judge (although having a discretion to refuse to accept
the jury’s verdict in circumstances where there is no evidence to support the
findings of the jury or where a jury gives an answer to a question which, in
law, provides no foundation for judgment), erred in rejecting the jury’s
verdict. At para. 32:

…A finding of negligence does
not necessarily mean that damages must be awarded in respect of each head of
damages advanced by a litigant. Put another way, the plaintiff might well
establish that the defendant was to some extent negligent. But he might have
failed to make a case for an award of damages under one or more of the heads of
damage put forth by him.

[14]        
In that case the jury made no award for special damages or costs of
future care. The trial judge felt that the minimum amount that should have been
awarded for special damages was $15,000 and the minimum amount that should have
been awarded for future care was $100,000.

[15]        
Taggart J.A. went on:

…while it can be said that the
jury erred in not awarding damages under those two heads of damages it cannot
be said that that means that the jury’s answers on quantum are in conflict with
its answers on liability.

[16]        
Simply put, the issue in LeBlanc was whether the trial judge was
correct when he substituted his judgement for the verdict of the jury because he
felt the jury’s decision was unreasonable. On appeal, it was held that it was
an error to reject the verdict.

[17]        
In Johnson the trial judge accepted the verdict of the jury
awarding the plaintiff $2,250 in general damages and nothing for past wage
loss, loss of future earnings or future care costs. The trial judge concluded
that he was obliged to enter the verdict and the plaintiff’s remedy, if any,
was by way of appeal.

[18]        
The Court of Appeal determined that the proper recourse was to remit the
matter to the trial judge for a re-assessment of damages stating at para. 158:

[158]    Important though the
right of trial by jury in civil cases is thought to be, the Court must be
mindful not only of the cost of a new trial by jury but also both of the inconvenience
to the witnesses, both expert and lay, and the reproach the administration of
justice rightly suffers from delays its procedures inflict on litigants. It is
now some seven years since the accident and five years since this action was
brought and the sooner it is ended the better.

[19]        
Balla is similar to the case at bar. In that case the jury
rendered a verdict of $1,000 for special damages and nothing for non-pecuniary
damages. The trial judge accepted the jury’s verdict. The Court of Appeal found
that it was an error in law for the jury to award special damages and nothing
for pain and suffering.

[20]        
In Balla the Court of Appeal stated:

[12]      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.

[21]        
In Fast a similar issue arose when a jury’s verdict was that the
plaintiff had suffered a loss of capacity to perform household duties as a
result of the injuries from a motor vehicle accident but declined to award any
damages. The Court of Appeal remitted the matter back to the trial court because
the award for damages turned largely on an assessment of Mr. Fast’s
credibility. Lowry J.A. gave the reasons for the court. He commented on the
result in Johnson:

[16]      There is no doubt much
to be said for the pragmatic approach this Court took in the circumstances of
the Johnson case. The cost of litigation and the time required to retry
cases of this kind are certainly of great consequence, but the right to a
jury’s assessment cannot be lightly compromised in favour of expediency. As
long as there continues to be a legal right to have a jury empanelled in civil
cases in this province, the consequences of unsupportable verdicts must
continue to be accepted. Generally, a litigant who wishes to exercise that
right should not lose it simply because the jury empanelled renders a verdict
that is not legally supportable. It cannot be a matter of a litigant having
only one kick at the can so to speak before having to accept an assessment made
by a judge.

[22]        
Similar findings were made in Sun and Banks.

[23]        
While the court should strive to give effect to a jury’s verdict, it
cannot do so where the jury’s verdict is internally in conflict.

[24]        
In this case, it is apparent that the jury did not accept the
plaintiff’s evidence as to her losses. Put bluntly, the jury did not believe
her. It is obvious, however, that the jury found that the plaintiff was
injured, at least to some degree, by the award for special damages of $8,000
and past loss of earnings of $12,000.

[25]        
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.

[26]        
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).

[27]        
The issue, then, is whether this result necessitates a new trial (Rule
12-6(7)) or whether I can pronounce judgement on some of the claims and order a
retrial on the balance (Rule 12-6(8)).

[28]        
There is a clear difference in wording of the two rules that sheds some
light on the issue. Rule 12-6(7) demands a retrial when either:

a)    a jury answers
some but not all of the questions directed to it, or

b)    the jury’s answers
are conflicting so that judgement cannot be pronounced on the findings.

[29]        
Conversely, Rule 12-6(8) allows partial judgment when a jury’s answer
entitles a party to judgement in respect of some but not all of the claims of
relief. It does not contemplate partial judgment when the jury’s answer is
conflicting.

[30]        
Respecting the jury’s finding of liability between the parties for the
collision, that question has been answered. There is nothing in the rest of the
jury’s verdict that is inconsistent with it.

[31]        
Respecting the jury’s finding on damages, an inconsistency exists. An
award for special damages and past wage loss and no award for non-pecuniary damages
have repeatedly been characterized in all the relevant case law as a “conflict”
and an “inconsistent result”.

[32]        
This conclusion is reinforced by Balla, Banks and Binnie v.
Marsollier, 2001 BCCA 543. Re-trials were ordered in all three pursuant to
Rule 41(2) (now Rule 12-6(7)). There was no mention of the potential
application of Rule 41(3) (now Rule 12-6(8)).

Rule 12-6(8)

[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.

Disposition

[36]        
It is regrettable, but in my view, Rule 12-6(7) applies and a retrial must
be ordered.

[37]        
Costs will be reserved to the new trial judge.

“G.P.
Weatherill J.”