This jury award was first reduced by the trial judge and in this decision by the Court of Appeal in Vancouver the award was totally wiped out, requiring the injury claimant to start her lawsuit all over again.
The claimant was injured in three motor vehicle accidents (Ciolli v. Galley, 2011 BCCA 106, Vancouver) and alleged she experienced continual upper body pain, depression,  and given her concentration, energy level, mood was unable to function as the energetic and successful businesswoman she once was.  The at fault drivers alleged that the claimant’s physical condition before the accidents was the cause of her ongoing disability. The Jury awarded the claimant a total of $12.45 million for serious but not catastrophic soft tissue injuries suffered in the three car accidents.
Fault was admitted but legal causation was a big  issue amongst the personal injury lawyers on both sides of the case. The trial judge significantly reduced the award for pain and suffering from $6.5 million to the rough upper limit at the time , $327,000.  The judge also dismissed an ICBC motion to declare a mistrial brought on the basis that there was “no evidence” to support the jury’s awards.
Before these car accidents the claimant had been hospitalized as a result an unrelated PNE accident and was diagnosed with a mild concussion and soft-tissue injuries to her head and neck, and experienced symptoms of fatigue, headaches, nausea, and nervousness. Some days she was unable to work because of the pain a disc herniation was discovered and she underwent surgery.  She testified  that she had felt her condition was improving before the car accidents.  The claimant’s personal injury lawyer  acknowledged at trial that the effects of the PNE injury constituted a “pre-existing condition”, and the other side mounted a “crumbling skull” defence.
The  appeal was allowed as the trial judge made an error by failing to provide jury with a proper summary of the evidence, having referred frequently to the claimant’s “entitlement” to compensation, without adequate emphasis on the question of legal causation. She had also failed to properly instruct the jury on the calculation of present value of future losses and how to assess  future events.
Finally, the Jury’s awards were found to be totally out of proportion to the injury claimants actual losses.
In response to the argument that the trial judge had erred in declining to declare a mistrial the Court of Appeal found, oddly, that to allow a trial judge to ignore the juries findings would come perilously close to setting aside an award on the basis that it was inordinately high, which power is only reserved for the Court of Appeal.  As the Court of Appeal warned, ” It would take a very courageous trial judge to do otherwise.” Posted by Mr. Renn A. Holness
Issue: In personal injury cases should a trial judge be allowed to courageously correct  mistakes made by the jury which lead to unreasonably high court awards?

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