Ontario Superior Court of Justice - Divisional Court
DIVISIONAL COURT FILE NO.: 10/13
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, NORDHEIMER & LEDERER JJ.
BETWEEN:
PAUL BERALDO and ELISA BERALDO
Plaintiffs
(Appellants)
– and –
DANIEL JANZIC
Defendant
(Respondent)
Counsel
Paul J. Pape & Nicolas M. Rouleau, for the appellants
Alan L. Rachlin, for the respondent
HEARD at Toronto: July 11, 2013
Reasons for Judgment
1This is an appeal from the judgment of Lococco J. dated November 17, 2011 in which he dismissed the appellants’ personal injury action following the verdict of a jury.
2On April 15, 2003, the Appellant, Paul Beraldo (“Paul”), was involved in a motor vehicle accident. A five-day trial took place during the month of November 2011. Liability was admitted. The jury concluded that the Appellant was not entitled to receive any compensation from the respondent.
3It was submitted on appeal that this finding was perverse and should be set aside. As counsel for the Appellants sees it, regardless of how the evidence is interpreted, it is certain that Paul incurred a soft tissue injury and, as a result, experienced pain and suffering that lasted for at least a few months. This being so, it was said that Paul had a right to some monetary compensation. Indeed, counsel for the Defendant, in her submissions to the jury, suggested damages in the range of $10,000 to $15,000.
4We do not agree.
5The principles governing appellate review of a jury verdict are well-established. The courts must accord great deference to a jury’s findings. The verdict of a jury may not be set aside unless the verdict is so plainly unreasonable and unjust, as to satisfy the court, that no jury reviewing the evidence, as a whole and acting judicially, could have reached it (see: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 30).
6There was only one treating professional who gave evidence and who saw the Appellant at a time immediately following, or contemporaneous to, the accident. This was a chiropractor who identified himself as a “friend” of Paul and whose credibility was challenged on the basis that, as a result of a flood in his basement, he no longer had his notes and testified based upon his memory. Five weeks following the accident, Paul was seen by an expert psychologist who also gave evidence. They only met once. There was no ongoing treatment associated with the accident. Paul returned and saw the psychologist eight years later, on April 8, 2011. At that time, he found that Paul suffered psychological problems due to the existence of chronic pain. The psychologist did not opine on whether the chronic pain resulted from the accident. On October 4, 2010, Paul was seen by a physiatrist. His conclusions are based, in part, on what Paul told him. He concluded that Paul suffered from chronic pain in his chest, neck and head and that his condition was “likely” caused by the motor vehicle accident. Paul saw a neurologist on April 5, 2011. He did find that there were neurological problems but, in the absence of any x-rays or records from Paul’s family physician, he could only rely on what he, the physiatrist and a medical expert relied on by the defendant were told by Paul.
7The medical expert retained by the Defendant concluded that Paul had sustained a soft tissue injury to his neck which would have been expected to heal over the course of two to three months.
8There were other issues for the jury to consider. During the month of June 2003, Paul was informed that his daughter had a serious and fatal disease. There was evidence that this affected his life, activities and sense of responsibility to those around him and could have contributed to any psychological difficulties he suffered. The jury was also advised that Paul had been a hockey player. He had retired in 2001. He had physical difficulties associated with those times. It was suggested that, while Paul’s business was not as successful as it had been prior to the accident, this was associated, not with his physical difficulties but, as a result of a dispute with his insurance company for several months after the accident, his business was reduced to one operational truck. Despite this, his business sales increased by almost 10% during the year immediately following the accident. As matters stood at the time of the trial, Paul continued to operate a snow removal business and worked as a general contractor. Paul advised the physiatrist that he was able to do all of his household chores and outdoor maintenance tasks. This professional concluded that, while Paul had suffered a soft tissue injury, it was of a type that typically healed within three to four months. Paul told the neurologist that he was able to play pick-up hockey once a week and continue to ride a Harley motorcycle.
9Credibility was an issue. It was for the jury to evaluate this evidence and determine if Paul, as a result of the accident, suffered an injury which justified the payment of non-pecuniary damages. In such circumstances, it is not for this court to re-assess, evaluate and determine if it, or for that matter another jury, would have come to the same result (McMahon v. Scott, [2008] O.J. No. 540 (C. A.) at para. 14).
10We see no reason to divert from the deference owed to the jury in these circumstances:
Juries are judges of the facts and the ability to find facts rests less heavily on erudition than it does on sophistication acquired through experience in the affairs of life, experience that is possessed eightfold by civil juries. It follows that the collective ability of juries to understand things, to evaluate motives, to analyze probabilities, to determine what is in harmony with human experience, and to reason from evidence to fact and from fact to rational inference must be, with rare exception, at the least equal to that of a single individual.
(Cahoon v. Brideaux, [2010] B.C.J. No. 853 (C.A.) at para. 4)
11The following applies here:
There was evidence from which the jury could have concluded that the plaintiff sustained a minor soft tissue neck injury. There was also evidence from which the jury could have concluded that the injury caused the plaintiff no pain, suffering or loss of enjoyment of life or such little pain, suffering, or loss of enjoyment of life that it was not deserving of compensation. Viewed in that light the jury’s answers are not conflicting. Moreover it cannot be said that there was no evidentiary foundation for the jury’s refusal to award damages.
(McDonnell v. Peterson, 1995 CarswellBC 1783 (S.C.) at para. 5)
12In this case, it was submitted by the Appellants that, with the presence of objective evidence supporting the existence of an injury, inexorably some award of compensation must be made. If that is correct, it would be required that the trial judge instruct the jury to that effect. This did not happen. There was no objection at the time the trial judge charged the jury. In any event, it does not matter. There is no such requirement that compensation must be made. To the contrary, it may be that an injury is sufficiently slight (de minimis) so as not to justify any award of compensation being made. Here, the objective evidence reflected a black eye and a cut at the time of the accident. It was open to the jury to find that this did not rise to a level of harm that warranted an award of the damages being made.
13There was evidence that Paul had a “bump” in his chest. This relied entirely on his evidence and his recollection. It was open to the jury to reject this evidence or to determine that it had not been proven that this injury was associated with the car accident:
The verdict of a jury will not be set aside as against the weight of the evidence unless it is so plainly unreasonable and unjust as to satisfy the court that no jury reviewing the evidence as a whole and acting judicially could have reached it.
(Burlie v. Chesson, [2001] O.J. No. 1960 (C.A.) at para. 7)
14While the disappointment that the Appellants undoubtedly feel at the jury’s verdict is understandable, that disappointment does not establish legal error or perverseness in its conclusions. It is apparent from the verdict of the jury that they did not have a favorable impression of Paul. Any assessment of credibility is a matter that was solely within the province of the jury.
15In the factum of the Appellants, it was argued that there were deficiencies in the charge delivered by the trial judge. We find there was no failing in the instructions given to the jury. They were complete, fair and balanced. We do not agree that it was inappropriate for counsel for the Respondent to have cross-examined the chiropractor on his failure to produce his file or that this was something that required comment from the trial judge as part of his charge. In a similar vein, it was suggested that, in her closing submissions, trial counsel for the Respondent left the impression with the jury that the Respondent would be personally liable for payment of the damages. Such an impression cannot be taken to have arisen from the mere suggestion by counsel that the jury should consider any damages awarded to be fair to both sides. However, even if this impression was left, it was so inconsequential in its nature that the trial judge was entitled, in his discretion, to decline to give specific instruction on this point.
16Finally, an issue was raised regarding a question asked by the jury in which they wanted to know the value of an insurance settlement that Paul had received. In response to that question, the trial judge instructed the jury that they not take this into account in their deliberations. The jury was properly instructed on the point.
17The Appellants received a fair trial. The verdict of the jury, while it may seem harsh, was one that was open to them on the evidence.
18The appeal is dismissed.
19There is no reason why costs should not follow the event. Counsel for the Respondent provided a Bill of Costs in the amount of $12,568.74. Counsel for the Appellants acknowledged
this was reasonable. Costs are awarded to the Respondent in the amount of $12,568.74, inclusive of fees, disbursements and HST.
LEDERER J.
SWINTON J.
NORDHEIMER J.
Date of Reasons for Judgment: September 4, 2013
Date of Release: September 4, 2013
CITATION: BERALDO v. JANZIC, 2013 ONSC 4770
DIVISIONAL COURT FILE NO.: 10/13
DATE: 20130904
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, NORDHEIMER & LEDERER JJ.
BETWEEN:
PAUL BERALDO and ELISA BERALDO
Plaintiffs
(Appellants)
– and –
DANIEL JANZIC
Defendant
(Respondent)
REASONS FOR JUDGMENT
LEDERER J.
Date of Reasons for Judgment: September 4, 2013
Date of Release: September 4, 2013