Court File and Parties

CITATION: Worley v. Beckley, 2015 ONSC 6144

DIVISIONAL COURT FILE NO.: DC-15-641

DATE: 2015-10-05

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: HEATHER WORLEY, Plaintiff (Appellant)

AND:

stephen beckley, Defendant (Respondent)

BEFORE: Swinton, Mullins and Fregeau JJ.

COUNSEL: Greg Carr, for the Plaintiff (Appellant)

Danielle Douek and A. Davenport, for the Defendant (Respondent)

HEARD at Hamilton: October 2, 2015

ENDORSEMENT

[1] This is an appeal by Heather Worley from the jury verdict and judgment of Reilly J., dated September 30, 2014, arising out of a motor vehicle accident. The respondent, Stephen Beckley, admitted liability, and the trial proceeded on the issue of damages. After a two week trial, the jury returned a verdict awarding general damages in the amount of $2,500.00 (netting $0 following the application of the statutory $30,000.00 deductible) and rejecting her other claims for damages. On October 15, 2014, Reilly J. awarded costs against the appellant in the amount of $140,000.00 on a partial indemnity basis, which is also being appealed.

[2] The appellant argues that the trial judge erred in failing to explicitly charge the jury with respect to the “Thin Skull Rule” in light of the evidence of her pre-existing neck and back pain and an expert’s opinion that she was more susceptible to injury because of her hyper-mobility and laxicity following pregnancy.

[3] Although the trial judge reviewed the evidence of the appellant’s expert Dr. Kumbhare as to her vulnerability to injury, she complains that he did not explain that the Thin Skull Rule is a doctrine of law and that defendants must take the plaintiffs as they find them.

[4] At the trial, it was already established that the respondent was liable for the appellant’s injuries, as liability was admitted. The only issue was the quantification of damages. The jury was required to determine the injuries suffered by the appellant and the extent of her recovery. In this case, the credibility of the appellant was a key factor in those determinations. From the verdict and in light of the evidence that this Court was invited to consider, it is clear that the jury determined that the appellant was injured in the accident, but her injuries were minor and resolved quickly. That jury verdict was reasonable and was grounded in the evidence.

[5] Even if the charge was inadequate, we find that it did not give rise to a substantial wrong or miscarriage of justice.

[6] The appellant also submits that the trial judge made comments revealing his views of the appellant’s credibility in the jury charge. The appellant submits that the trial judge oversimplified what the surveillance videos showed, and he stated that the evidence of health practitioners could only be relied upon if the information provided to them by the appellant could be believed. The appellant submitted that the cumulative effect of these comments raised a reasonable apprehension of bias that influenced the jury, resulting in a substantial wrong or miscarriage of justice.

[7] The appellant’s counsel did not object to the fairness of the trial judge’s presentation of the evidence. In deciding whether there was a reasonable apprehension of bias, a court should have regard to the charge as a whole and the conduct of the judge throughout the trial. In our view, the comments made in the charge do not give rise to concerns about the trial judge’s impartiality.

[8] Finally, the appellant seeks to overturn the trial judge’s costs award of $140,000. The trial judge received a detailed bill of costs from the respondent’s counsel and he heard oral submissions on costs. He then made a brief endorsement, without reasons, awarding costs on a partial indemnity basis in the total amount of $140,000 all in.

[9] It would have been preferable had the trial judge provided some reasons for his costs decision. However, from a reading of the transcript of the costs hearing, it is clear that he turned his mind to the factors in Rule 57.01. He did not award costs on a substantial indemnity basis, as requested because of the respondent’s offer to settle. He questioned the need for two counsel, discussed their hourly rates, considered whether there were excessive hours, and considered the disbursement for the expert, the length of the trial and the result. He had no evidence of impecuniosity or economic hardship. Ultimately he reduced the costs from the amount sought.

[10] Costs are in the discretion of the trial judge. It cannot be said that the amount awarded was “clearly wrong” so as to warrant intervention by an appellate court. Therefore, we would grant leave to appeal the costs order, given our concern about the lack of reasons, but we would dismiss the appeal as to costs.

[11] For these reasons, the appeal is dismissed. Costs to the respondent are fixed at $10,000, an amount that is fair and reasonable for an appeal of this complexity.

Swinton J.

Mullins J.

Fregeau J.

Date: October 5, 2015