The case in McCliggot v. Elliott 2022 BCCA 315 concerns soft tissue injuries suffered by Patricia Elliott after she was hit by a flat-deck lumber truck, which led to a jury awarding her $350,000 for non-pecuniary damages, $46,500 for past income loss and $15,000 for the cost of future care. But the appellants, Ryan McCliggot and Slegg Construction Materials Ltd., argued the trial judge erred in providing an inadequate jury charge on how to assess non-pecuniary damages, and that assessment was wholly out of proportion with both the evidence and the comparative approach to reviewing damage awards made by a jury, which says appellate interference is justified if a jury damage award falls substantially beyond the upper or lower range of comparable judge-made awards. They also argued the jury’s assessments of past loss of income and cost of future care were wrong.
For her part, Elliott argued the comparative approach should be discarded, and the awards should not be disturbed. And in a split decision, the B.C. Court of Appeal ruled the non-pecuniary damage award was wholly disproportionate and reduced the amount from $350,000 to $250,000 but did not disturb the damages award for past loss of income earning capacity and cost of future care. It also ruled the comparative approach was firmly established in its jurisprudence, and it could not be discarded by a three-judge panel of the court.
But Justice Gail Dickson, who authored the majority decision, wrote that the limits to the approach have become increasingly apparent over time.
“Factors such as physical injury, age, and disability, are generally amenable to comparison. However, others, such as the nature and depth of emotional suffering, a jury’s subjective appreciation of that suffering and appropriate solace may be unique and difficult to identify and compare from case to case,” she wrote. “The subjectivity and specificity of non-pecuniary loss makes all non-pecuniary damage awards highly variable and not amenable to a tariff. When combined with the lack of available reasons on key facts such as the solace and replacement amenities considered appropriate by a jury, these challenges may render application of the comparative approach problematic in a given case.”
As a result, Justice Dickson added a step to the comparative approach, which she argued balances fairness and uniformity in the administration of civil justice with respect for the proper function of juries.
“Where, as here, the plaintiff’s non-pecuniary loss is not amenable to close comparison in material and important respects to losses suffered by other plaintiffs in other cases, applying the comparative approach is less directly helpful than it can be in more common cases,” she wrote. “Nevertheless, to the extent that material and important aspects of a loss can be meaningfully compared, doing so provides a helpful starting point on appellate review of a jury award. However, the review should then go on to account for the additional unique aspects of the loss, considered at their highest from the perspective of the plaintiff. It should also do so in a generous manner, bearing in mind the perspective of the jury as reflected by its award.”
Justice Dickson was joined by Justice Leonard Marchand in her decision, which was released Sept. 16. But in a dissent, Justice Harvey Groberman wrote he would have reduced the non-pecuniary damage award to $200,000 and that the court’s approach in Brisson v. Brisson 2002 BCCA 279, which held that juries should not be instructed on ranges of non-pecuniary damages, needs to be re-evaluated in the future, either through legislation or a five-panel member of the court.
Karl Hauer, Hauer & Co.
Karl Hauer of Hauer & Co., who represented Elliott, said the court seems to be chipping away at the comparative approach by adding the additional step to it outlined by Justice Dickson.
“They didn’t discard [the approach], but that additional step is something that is going to raise the risk for defendants and insurers in proceeding to a jury trial in B.C. because it enlarges the permissible scope by which the Court of Appeal will allow substantial deviation on non-pecuniary damages from what a judge would have awarded,” he said. “When non-pecuniary damages from a jury are particularly low the Court of Appeal is extremely reluctant to interfere because they can’t get inside the jury’s head, so defendants often saw the civil jury trial as a win-win situation because if the damage award is low the court will uphold it, and if it is high, it is more likely to intervene. This restores more of a balance between defendants and plaintiffs in the civil jury system.”
And there is an “inherent unfairness” about depriving the jury of information about what judges order in similar cases, said Hauer.
“I think this probably sets the stage for a case which would overturn Brisson and essentially permit judges when charging juries to give them for their reference a range of non-pecuniary damages so they have some base to ground them,” he said.
Counsel for McCligott and Slegg Construction Materials did not respond to a request for comment.
If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.