Hadzic et al. v. Croxford, 2019 ONSC 6839

CITATION: Hadzic et al. v. Croxford, 2019 ONSC 6839

DIVISIONAL COURT FILE NO.: DC-18-37 DATE: 20191126

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

T. Ducharme, H. Pierce, W. Tausendfreund JJ.

BETWEEN:

Jusuf Hadzic, Samka Hadzic, Armela Hadzic, Ermina Hadzic by their litigation guardian Samka Hadzic

Plaintiff/Applicant

– and –

Tiffany Croxford

Respondent

K. Arvai, for the plaintiff/applicant

B. Smith and S. Miller, for the respondent

HEARD: November 25, 2019

ducharme j.

1The Appellant seeks to appeal from the judgment of Garson J. dated April 24, 2017 following a jury trial in London. The jury returned a verdict and awarded the Appellant $15,000 for general damages, $35,000 for future medications, and $5,000 for future psychotherapy. It assessed zero damages for loss of past or future income, and zero damages for all other future care cost claims. The Appellants request that the appeal be allowed with costs and that this action be referred back for a new trial on the issue of all damages except future medications and psychotherapy. The Appellants further requests that the costs of the first trial be reserved to the trial judge on the second trial.

2The Appellant advances the following issues:

1. Are the damages assessed under the various heads conflicting and irreconcilable?

2. Is the assessment of damages unreasonable and unjust?

3. Did the jury err in principle in its assessment of damages by taking into account irrelevant factors?

4. Did the jury err in principle in failing to take into account the objective of an assessment of damages?

5. Is the assessment of damages wholly out of proportion to the Appellant’s injury and loss?

Standard of Review

3The Court of Appeal for Ontario in Hamilton v. Bluewater Recycling Association, 2016 ONCA 805 repeated the principles laid out in Housen v. Nikolaisen, 2002 SCC 33 that the test is whether the conclusion reached by the jury is so plainly unreasonable and unjust that no jury, reviewing the evidence as a whole and acting judicially, could have reached it.

Issue 1: Are the damages assessed under the various heads conflicting and irreconcilable?

4The Appellants submit that the assessment of general damages in the sum of $15,000 suggests that the jury did not accept that Mr. Hadzic had suffered chronic pain syndrome as a result of the collision. On the other hand, the assessment of $35,000 for future medications and $5,000 for future psychotherapy suggest that the jury accepted Mr. Hadzic’s injuries continued to the date of trial and would do so indefinitely and that they were caused by the Respondent. The Appellants submit these assessments by the jury are inconsistent and cannot be reconciled.

5We find that there is no obvious inconsistency in the jury’s findings. The jury’s assessment of damages can be reasonably interpreted to mean that the jury accepted Mr. Hadzic sustained a modest injury which had not prevented him from continuing to work at his pre-collision capacity. The jury accepted that Mr. Hadzic will require ongoing medication and psychological therapy to continue to work until he can retire.

Issue 2: Is the assessment of damages unreasonable and unjust?

6The Appellants rely on Graham v. Hodgkinson (1983), 40 O.R. 2d 697 (CA) and Montepeque v. State Farm Mutual Automobile Ins. Co., 2017 ONCA 959 for the proposition that irreconcilable answers to questions posed to a jury can make its verdict so unjust and unreasonable as to warrant appellate intervention.

7In our view it cannot be said that the jury’s assessment of damages in this case is so unjust and unreasonable as to warrant appellate intervention.

8Moreover, there are several reasons why the jury’s verdict was reasonable.

9First, the verdict suggests that the jury did not find Mr. Hadzic to be a credible witness. As in most personal injury actions, the credibility of the Appellant determined the award given. There are a variety of reasons why the jury might have doubted the credibility of Mr. Hadzic. The jury had the opportunity to observe Mr. Hadzic and assess whether his evidence was credible over the course of the trial.

10Second, it was not plainly unreasonable for the jury to reject the evidence of Dr. Ogilvie-Harris, an expert called by the Appellants, on the basis that his conclusions were largely dependent on the information provided to him from Mr. Hadzic.

11Third, it was not plainly unreasonable for the jury to accept the evidence of Dr. Berbrayer, an expert called by the Respondent. Dr. Berbrayer examined two ultrasounds of Mr. Hadzic’s left shoulder and concluded that microscopic tears shown on a December 8, 2008 image had healed as of a June 15, 2011 image. Dr. Berbrayer also examined a four-minute portion of the video surveillance of Mr. Hadzic at work and concluded that he demonstrated various ranges of motion in his shoulder and was using the muscles originally injured in what appeared to be a pain-free fashion.

Issue #3 and 4

12Given our conclusions on the preceding two issues, we need not consider the third and fourth issues raised by the appellant.

Issue #5

13As for the fifth issue we are not of the view that the assessment of damages is wholly out of proportion to the Appellant’s injury and loss. This conclusion is not affected by the fact that there was an offer to settle served by the Respondent dated February 24, 2016 for $150,000 net of the statutory deductible of $36,905, plus costs. This offer could have been made solely to manage risk and avoid the legal fees of trial.

14For the foregoing reasons the appeal is dismissed and costs are awarded to the Respondent in the amount of $9,391 inclusive of HST.

“Justice T. Ducharme” Ducharme J.

I agree