In general, people have the right to a jury trial in personal injury cases. Jury decisions often differ from how a judge would have decided.
Take James S’s case. He suffered a whiplash type of injury in a car accident. He was off work for four weeks, attended a pain clinic, and 2½ years after the accident, had surgery to relieve pressure from a resulting “thoracic outlet syndrome.” He was left with a permanent partial disability, caused by headaches and back and shoulder pain.
The defence asked for a trial by jury. The jury concluded James should get over $620,000 in compensation, which included $275,000 for pain, suffering and loss of enjoyment of life. The defence then appealed the $275,000 part of the judgment as being too high.
The BC Court of Appeal can change a jury award if it “falls substantially beyond the upper or lower range of awards of damages set by trial judges in the same class of case.”
Here, two of the three appeal court judges agreed that the range of damages for pain, suffering and loss of enjoyment of life in similiar injury cases is between $66,000 to $100,000. The jury’s award of $275,000 was considered “clearly anomalous and a wholly erroneous estimate of Mr. [S]’s loss.”
However, a unique factor in James’s case was that, due to his injuries, he faced being unable to work at the job he’d loved doing for 25 years on a ranch. The loss of his work and lifestyle on the ranch were extremely significant. The majority of the appeal court thus decided that a reasonable award for James’s pain, suffering and loss of enjoyment of life was $175,000 (still $100,000 less than the jury’s award).
The chief judge disagreed.
He said that if a plaintiff appeals on the ground that the jury award is too low, the defendant can argue that’s because the jury “must not have believed the plaintiff” and the award “reflects the jury’s [negative] view of the plaintiff’s credibility.” So the defendant can argue that the appeal court shouldn’t intervene. And that, in fact, is what often happens. When plaintiffs ask the BC Court of Appeal to increase an award for pain and suffering, they fail about 80% of the time.
But if the defendant appeals on the ground that the jury award is too high, things are different. “By opting for a jury trial,” said the chief judge, “the defence may anticipate an award that is within the range a judge alone would have made, or less; but if the award is much higher than the range of judge alone awards, the defence can come to this Court to seek a reduction. It is a kind of ‘win win’ equation for the defence, and has the appearance of unfairness.” The chief judge said he would not have changed the jury’s decision.
Awarding damages for pain and suffering isn’t a precise science. Juries sometimes decide matters differently from judges (and different judges also differ from each other on appropriate damages). A good lawyer will help ensure you get the best compensation possible within an appropriate range – regardless of whether a judge or jury decides the case.
Janice Mucalov, LL.B. for Gertsoyg & Company. This column provides information only and must not be relied on for legal advice. Please call Gertsoyg & Company at (604) 602-3066 for a free legal consultation concerning your particular case.