Jury's award in personal injury case 'wholly disproportionate and anomalous': BC Court of Appeal

While the comparative approach in assessing a jury’s damage award is firmly established in jurisprudence, the BC Court of Appeal found it had minimal value in a personal injury case with unique circumstances in which the court reduced the award.

In McCliggot v. Elliott, 2022 BCCA 315, Patricia Dawn Elliott was driving her minivan in Victoria, BC when it was hit by a lumber truck owned by Slegg Construction Materials. Elliott sustained soft tissue injuries. She was forced to close her daycare business following the accident because her injuries prevented her from performing the physical activity involved in caring for young children. Her injuries also affected her housekeeping, recreational, and other activities. She further claimed that she had not been as present for her three children as she was before the accident.

A jury awarded Elliott $463,385.54 in damages, including $350,000 for non-pecuniary damage. The defendants challenged this verdict, asking the appeal court to re-assess the award of non-pecuniary damage, past income loss, and cost of future care. They argued that the judge provided the jury with an abbreviated and inadequate charge on how to assess non-pecuniary damages. They also said that the jury’s assessments were wholly erroneous and out of proportion because it fell substantially beyond the upper range of awards set by judges in the same class of cases.

Purpose of non-pecuniary damages

Non-pecuniary damages are intended to compensate the plaintiff for pain and suffering caused by their injuries. The court said that the rule on appeal of a jury’s damage award is that it will only be set aside in the rare case where the award is “wholly disproportionate or shockingly unreasonable.”

The defendants contended that instead of the “wholly disproportionate or shockingly unreasonable” standards, the court should adopt instead a comparative approach for the purpose of appellate review. Under a comparative approach, jury awards are compared with judge-made awards.

The appeal court recognized that the comparative approach is firmly established in jurisprudence and a three-member division was not entitled to discard the approach. Nonetheless, the court found that a comparative approach had minimal value in this case because the unique impacts of Elliott’s injuries in her specific circumstances made it difficult to be compared with the situations in other judge-made awards.

Wholly disproportionate,sufficiently anomalous

Elliott argued that comparing a non-pecuniary damage jury award to judge-alone awards was logically unsound and entirely unhelpful. She asserted that the sole focus on appellate review is whether the award is “shockingly unreasonable” that no jury acting judicially could have made it based on the evidence at trial.

The defendants pointed out that Elliott was able to return to gainful employment within four months of the accident and she was able to resume most of her recreational activities. The court observed that the jury charge was adequate and error-free. However, given the nature and extent of Elliott’s injuries, the award of $350,000 for non-pecuniary damage was indeed wholly disproportionate and sufficiently anomalous that a reduction was appropriate. In the end, the court agreed to reduce the award for non-pecuniary damage to $250,000.