CITATION: Dunklin v. Belair, 2014 ONSC 6559
DIVISIONAL COURT FILE NO.: DC-12-00512-00
DATE: 20141112
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, HAMBLY, McCARTHY JJ.
BETWEEN:
ALLAN DUNKLIN, SCOTT DUNKLIN, personally AND LEO DUNKLIN AND SONIA DUNKLIN, by their Litigation Guardian, ALLAN DUNKLIN
Appellant/Plaintiff
– and –
ANDRE BELAIR
Respondent/Defendant
G.D.E. Adair, for the Appellant
D.A. Zuber, for the Defendant
HEARD: September 16, 2014 in Oshawa
REASONS FOR JUDGMENT
McCARTHY, J.:
[1] The plaintiff appeals from the judgment of Shaughnessy J. dated August 26, 2013. The judgment was issued after a jury verdict was returned on December 13, 2012 awarding the plaintiff net damages of $16,500. This figure resulted from the application of the jury’s finding on apportionment of liability of 15% against the defendant and 85% against the plaintiff to its assessment of the plaintiff’s damages of $206,958.46.
Background
[2] The action arose as a result of injuries sustained by the plaintiff in a motor vehicle accident that occurred on October 11, 2008 on County Road 400 at its “T” intersection with Ste. Catherine Street, in the Township of Russell near Ottawa, Ontario. The plaintiff was operating his motorcycle westbound along County Road 400 immediately behind the defendant’s truck. The two vehicles were approaching Ste. Catherine Street when the plaintiff attempted to pass the defendant in the eastbound lane of travel. At that moment, the defendant made a left turn, intending to proceed southbound onto Ste. Catherine Street and a collision between the two vehicles ensued.
[3] The accident resulted in significant injuries to the plaintiff, most notably a fracture in the neck together with a complicated fracture of the right knee.
[4] The jury was asked to consider the respective negligence of both drivers, if any, and to apportion liability between them. In addition, the jury was asked to assess the damages suffered by the plaintiff for pain and suffering (non-pecuniary damages or general damages) and for financial loss, broken down into categories for special damages, future loss of income from the date of trial and loss of future care/housekeeping/handyman services.
The Jury’s Verdict
[5] On the verdict sheet, the jury was asked to provide particulars of any negligence it found against the respective parties. After answering “yes” to the question of whether there was any negligence on the part of the defendant, which caused or contributed to the collision, the jury listed four elements of that negligence as follows:
• The defendant did not adequately check mirrors;
• Extra onus on defendant to check side mirrors before doing left-hand turn based on fact rear view mirror was blocked;
• Didn’t perform a shoulder check;
• Didn’t activate left turn signal in a timely fashion.
[6] After answering “yes” to the question of whether there was negligence on the part of the plaintiff which caused or contributed to the collision, the jury then listed four elements of that negligence as follows:
• Should have seen the intersection and should not have passed;
• Should have seen the dump sign and should not have passed;
• Should have made a greater effort by sounding his horn and making eye contact;
• Wrong track positioning when he passed the vehicle.
[7] The jury then went on to apportion liability as between the parties, attributing 15% to the defendant and 85% to the plaintiff.
Basis of the Appeal
The plaintiff sets out four grounds of appeal:
The apportionment of liability as between the plaintiff and the defendant was one no properly instructed jury could reasonably have reached on the evidence and as such constitutes a palpable and overriding error.
The jury’s assessment of the plaintiff’s damages was wholly erroneous and requires the intervention of this Honourable Court in order to do justice between the parties.
Opinion evidence was adduced from the lay witness, Elgen Austin, which evidence was inadmissible but which was acted upon by the jury in their assessment of the liability of the plaintiff.
The verdict of the jury on both liability and damages was perverse, unreasonable and unsupported by the evidence.
Analysis
The Trial Judge’s Instructions to the Jury
[8] Counsel for the plaintiff was candid in conceding towards the end of his submissions that there was nothing about the jury charge itself that could serve as a basis for a successful appeal. Rather, the charge should be viewed in the overall context of the trial result and the injustice that it has wrought.
[9] I agree that there is nothing in the jury charge alone that could serve as the basis for appellate intervention. In my view, the trial judge was even-handed and thorough in his treatment of the law and the evidence, both in respect of liability and damages.
[10] On the issue of liability, the trial judge read out the applicable sections of the Highway Traffic Act that would govern the actions of motorists in the factual situation presented to the jury for consideration. While the trial judge did not advise the jury that there was a “heavy” onus under s. 142(1) of the Act upon the left hand turning defendant, neither did he instruct the jury of the “distinct” duty of care and onus of explanation on the overtaking plaintiff as was found by the Ontario Court of Appeal in Newton v. Skretteberg, [1958] O.J. No. 492, at para 2. I agree with counsel for the defendant that, had the trial judge spoken to the jury of a heavy onus on the left hand turning defendant, he would have equally had to speak of a heavy onus on the overtaking plaintiff. I can find no error on the part of the trial judge in his instructions on liability.
[11] The plaintiff did not seriously argue that there was any portion of the trial judge’s instructions that were inadequate in respect of damages. We were not directed to any portion of the jury instructions on damages which could be considered insufficient, misleading or erroneous.
[12] Counsel for the plaintiff did not object at trial to any portion of the trial judge’s instructions. The trial judge afforded the parties an opportunity to provide input into what should be in the charge at both a pre-charge hearing and after counsel had received copies of a proposed draft charge from the trial judge in advance of him giving his instructions.
[13] The Ontario Court of Appeal considered the importance of a failure to object to a jury charge in Vokes Estate v. Palmer, 2012 ONCA 510, 294 O.A.C. 342 at para 7:
While a failure to object is not always fatal in a civil jury trial, ‘an appellate court is entitled to give it considerable weight’….In the absence of an objection at trial, in most instances, an alleged misdirection or non-direction will not result in a new trial in a civil case unless the appellant can show that a substantial wrong or miscarriage of justice has occurred….(citations omitted)
[14] In the absence of any deficiency in the jury charge or an objection to that charge, the plaintiff must satisfy an appellate court that a substantial miscarriage of justice has occurred as a result of the jury’s verdict. For the reasons that follow, I am unable to conclude that a substantial miscarriage of justice has occurred in this case.
The Opinion Evidence of Lay Witness Austen
[15] The plaintiff asserts that it appears that the jury acted on the inadmissible evidence of Elgin Austen in arriving at the conclusion that the plaintiff was in the “wrong track” of the eastbound lane in executing his overtaking manoeuver.
[16] I disagree with this ground for appeal for three reasons:
(a) there can be no way of determining what evidence the jury relied upon in arriving at its conclusion. There was other evidence pertaining to the appropriateness of the track which the plaintiff drove in, some of it from the plaintiff himself;
(b) the trial judge confined Mr. Austen to testifying as a fact witness, allowing him to reference information in the Ministry of Transportation handbook. The trial judge was careful not to allow Mr. Austen to offer expert opinion evidence;
(c) it was open to the jury on the evidence before it to conclude that the plaintiff’s failure to execute the overtaking manoeuver in the wheel track furthest from the defendant, so as to allow himself sufficient time to react, constituted part of his negligence.
The Jury’s Apportionment of Liability
[17] The Supreme Court of Canada set out the standard of review applicable to civil jury verdicts in the seminal case of McLean v. McCannell, [1937] S.C.R. 341 at para 3, “….the verdict of a jury will not be set aside as against the weight of 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.”
[18] With respect, I am unable to agree with the plaintiff that the verdict of the jury came anywhere near to this high threshold. Indeed, there was ample evidence upon which a jury could and did reasonably find each of the parties partly at fault. Not only was there the respective evidence of the parties themselves, tested by cross-examination and open to assessment for credibility and reliability, but there was also the evidence of an independent witness, photographs and diagrams of the accident scene, two accident reconstruction experts and the aforementioned evidence of Austen, which referenced a Ministry of Transportation publication. Moreover, there were even admissions by the plaintiff that, had he seen the sign for Ste. Catherine Street or had he recognized that the two vehicles were approaching an intersection, he would not have attempted to pass the defendant. It was open to the jury to find that the combination of the four tenants of negligence attributed to the plaintiff, considered together, were responsible for the larger share of liability. In short, it was open to the jury, on the evidence before it, to apportion liability as it did.
The Jury’s Assessment of Damages
[19] The jury assessed general damages for pain and suffering at $110,000, special damages at $2,513.46, future loss of income at zero and loss of future care/housekeeping/handyman services at $94,445.
[20] Plaintiff’s counsel does not challenge the jury’s assessment of special damages. Instead, he asserts that the jury’s award of general damages constituted a wholly erroneous estimate, warranting interference with that assessment by an appellate court. In addition, the figure arrived at for future loss of income ($0) flies in the face of both the evidence and the reasonable possibility of a future event, that of the plaintiff having to retire early. Finally, the jury rejected over 75% of the well supported and reasonable claim for future care costs in arriving at its assessment under this head of damages.
[21] I am unable to accept that the jury’s assessment of damages was so inordinately low as to constitute a plainly unreasonable or unjust verdict. In respect of general damages, the jury opted for an assessment in the range suggested by defence counsel in his closing address. In the absence of any instruction from the trial judge about a reasonable range or some comment by him on the figures suggested by counsel, the jury was left with the task of arriving at a figure based on its assessment of the evidence and the suggestions of counsel. While the injuries sustained by the plaintiff were no doubt serious and complicated, the jury also heard the evidence of pre-existing left knee difficulties and some conflicting evidence about the role that the left knee was playing in the plaintiff’s overall level of function. There was also some suggestion that the plaintiff may have understated or misstated the significance of that left lower extremity to treating doctors and assessors. And while the trial judge specifically (to the chagrin of defence counsel) directed the jury to ignore the apparent conflict in the evidence on that point, the instructions also reminded the jury that it was their view of the evidence, not the trial judge’s or that of counsel, that mattered.
[22] The award of $0 for future income loss was entirely dependent upon whether the jury found that the there was a reasonable possibility of forced early retirement because of the injuries sustained in the motor vehicle accident. In light of the trial judge’s instructions and in light of the method by which the jury was asked to calculate future loss of income (based upon a present value calculation of an assumed reduced working life), it was entirely reasonable for the jury to award $0 if the underlying future event was rejected by the jury as not reasonably possible. On the evidence before it, which included evidence that the plaintiff had returned to modified employment earning steadily increasing amounts in the post-accident period, the jury was entitled to accept or reject both the plaintiff’s theory of future income loss and any evidence that tended to support it. Although Dr. Stephen gave some evidence touching on the plaintiff’s comparative disadvantage in the work force, there was no separate category on the verdict sheet for loss of earning capacity or loss of competitive advantage.
[23] Finally, the future care/housekeeping/handyman services award of $94,445 was neither unreasonable nor unconscionably low. The jury was asked to consider the evidence about the necessity, the cost, the frequency and the duration of certain goods and services. The non-rounded figure arrived at suggests that some thoughtful calculations went into the jury’s ultimate award. It was open to the jury to weigh all of the evidence, including that of future care cost expert Pauline Shenton and the supporting evidence of the medical doctors, in arriving at the awarded figure.
Disposition
[24] For the above reasons, this appeal is dismissed. If the parties are unable to agree on costs, the court will entertain written submissions according to the following schedule: a) the defendant shall serve and file submissions on costs on or before November 14, 2014; b) the plaintiff shall serve and file responding submissions on or before November 28, 2014; c) the defendant shall serve and file reply submissions, if any, on or before December 5, 2014. The filings shall be in triplicate and shall take place at the office of this court at Newmarket.
McCarthy J.
Matlow J.
Hambly J.
Released: November 12, 2014
CITATION: Dunklin v. Belair, 2014 ONSC 6559
DIVISIONAL COURT FILE NO.: DC-12-00512-00
DATE: 20141112
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, HAMBLY, McCARTHY JJ.
B E T W E E N :
ALLAN DUNKLIN, SCOTT DUNKLIN, personally AND LEO DUNKLIN AND SONIA DUNKLIN, by their Litigation Guardian, ALLAN DUNKLIN
Appellant/Plaintiff
– and –
ANDRE BELAIR
Respondent/Defendant
REASONS FOR JUDGMENT
McCARTHY J.
Released: November 12, 2014