The trial judge found the jury’s conclusions in this personal injury case to be conflicting and dismissed the appellant’s application to enter judgment on the terms of the jury verdict. He ordered a retrial to take place before him, without a jury. This is an appeal from those orders.
The claimant was injured in a motor vehicle accident as a result of the negligence of the appellant. The jury found the injury claimant 85% at fault and the appellant 15% at fault for the car accident. Out of pocket expenses and loss of housekeeping capacity to the date of trial were assessed at $5,100 but the jury made no award for pain and suffering.
The appeal was successful and the Court of Appeal concluded that the judge should have entered a partial judgment of the jury. In doing so the Court of Appeal actually changed the wording of a prior case!
In Kalsi v. Gill, 2014 BCSC 1833, Weatherill J. said,
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.
This approach suggests the sub‑rules are mutually exclusive, but that cannot be the case. Sub‑rule (8) is applicable when the answers of the jury entitle either party to judgment in respect of some of the claims for relief in the notice of civil claim but there are “remaining claims [that] must be retried.” It must, therefore, be applicable when a jury answers some but not all of the questions directed to it.
The Court of Appeal rephrased the description of the relevant sub-rule from the passage at paras. 28‑29 of Kalsi as follows:
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, as a result of either:
a) the jury’s failure to answers some of the questions directed to it, or
b) the jury’s conflicting answers
judgment cannot be pronounced.
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 for relief. It is inapplicable when as a result of the jury’s conflicting answers no judgment can be pronounced.
Can you spot the difference?
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.