DATE: 20010529

DOCKET: C31375

COURT OF APPEAL FOR ONTARIO

CHARRON, ROSENBERG and GOUDGE JJ.A.

BETWEEN:

Tom David,

MATTHEW BURLIE

for the appellant

Plaintiff/

Appellant

• and -

Michael T. J. McGoey, Q.C.,

for the respondent

MARYLOU CHESSON and

EARL DAVID CHESSON

Defendants/

Respondents

Heard: April 2, 2001

On appeal from the judgment of Madam Justice Frances P. Kiteley dated November 19, 1998

CHARRON J.A.:

A. Overview

[1] The appellant, Matthew Burlie, appeals from the judgment of Kiteley J. dated November 19, 1998, dismissing his action in accordance with the jury’s verdict.

[2] This action arose out of a motor vehicle accident that occurred on December 26, 1989, as a result of which the appellant claimed to have sustained injury to his neck and back. The appellant claimed damages in excess of $1,000.000. Liability for the accident was admitted prior to trial. Damages remained at issue.

[3] The action was tried before a jury over the course of six weeks during the fall of 1998. Except for the testimony of the appellant and members of his family, most of the evidence consisted of expert opinion evidence called by each party. The jury verdict was returned in the form of answers to two questions. The first question related to the issue of causation, and the second, to the assessment of damages. The jury was instructed to assess the damages regardless of the answer to the causation question.

[4] In response to the first question, the jury held that the motor vehicle accident did not cause or materially contribute to any injury, loss or damage to the appellant. The jury then assessed the damages at $25,000 for pain and suffering and loss of enjoyment of life, and $0 for all other heads of damages. The appellant moved for a new trial on the ground that the jury’s answers were conflicting. The trial judge dismissed his motion and dismissed the action in accordance with the jury’s verdict.

[5] The appellant’s main contention is that the verdict of the jury is perverse, having regard both to the evidence and to the respective positions advanced by the parties at trial. He also raises other grounds related to evidentiary rulings made by the trial judge on the admissibility of expert opinion evidence.

[6] In my view, the record does not support the appellant’s contention that the verdict is perverse. Nor am I persuaded that any error in the trial judge’s evidentiary rulings merits intervention by this court. I would therefore dismiss the appeal for reasons that follow.

B. The Jury’s Verdict

1. Standard of review

[7] The principles governing appellate review of a jury verdict are well established. 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: McCannell v. McLean., [1937] S.C.R. 341 at 343. In Vancouver-Fraser Park District v. Olmstead, [1975] 2 S.C.R. 831, the Supreme Court of Canada rejected the suggestion that a verdict should be “perverse”, implying moral turpitude, before it could be set aside. The test, rather, is based on an examination of whether the evidence so preponderates against the verdict as to show that it was unreasonable and unjust.

2. Position of the parties

[8] The appellant contends that the evidence was conclusive that the motor vehicle accident caused, or contributed to, at least some of his injuries, and that the issue for the jury was to determine the extent of the injuries caused by the accident. He submits that the manner in which the case was submitted to the jury by counsel and by the trial judge accords with this proposition. The jury was essentially asked to decide whether the accident had only caused a minor injury to his neck that had resolved itself within six to nine months, as contended by the respondents, or whether it had caused a serious injury to his back that resulted in some degree of permanent incapacitation, as he claimed.

[9] The appellant therefore submits that the jury’s finding that the accident did not cause or materially contribute to any injury is perverse, because it accords neither with the evidence nor with the respective positions of the parties. In the circumstances, the appellant submits that, in hindsight, the jury should not have been given the option to answer “no” to the question on causation and a new trial should be ordered on the issue of damages only.[^1]

[10] The respondents disagree with the appellant’s assessment of the evidence at trial, and his characterization of the issues that were left with the jury. They submit that one of the central issues before the jury throughout the trial was the appellant’s credibility. Since the appellant’s subjective complaints formed the basis of the medical expert opinion evidence adduced in support of his case, it was necessary, for the appellant to succeed, that the jury accept his complaints as credible. This credibility assessment undoubtedly extended to all subjective symptoms complained of by the appellant, and left open the possibility that none of his alleged complaints arising from the accident were credible.

[11] The respondents further submit that the issue of causation remained a live one with respect to all of the alleged injuries, and that the question put to the jury, which was largely drafted by the appellant’s counsel, properly reflected the parties’ respective positions on this issue. While the respondents conceded at trial that the jury could find that the accident caused the more minor injury to the neck, referred to at trial as “the little one”, rather than the alleged permanent injury to the back, “the big one”, it is submitted that it always remained open to the jury to find, on the evidence and in accordance with the trial judge’s instructions, that the accident had not caused any of the alleged injuries. Consequently, the respondents submit that the jury verdict is not perverse as contended.

[12] In my view, the record supports the respondents’ position on this ground. I have found the following parts of the trial to be particularly informative on this issue: the opening addresses of counsel, the conduct of the trial the pre-charge conference, the closing addresses of counsel, the trial judge’s instructions to the jury, the verdict and the subsequent motion for a new trial.

3. Counsel’s opening addresses

[13] It is clear from both counsel’s opening addresses that the credibility of the plaintiff (appellant) was a central issue in this case.

[14] In a relatively brief opening address, counsel for the plaintiff set out for the jury the gist of his client’s claim. In my view, the jury would certainly have understood from counsel’s address that his client’s testimony would figure prominently in this trial.

[15] Counsel for the defendants (respondents) made it clear to the jury in his opening address that, although fault was admitted, “a line is then drawn as far as this lawsuit is concerned.” He stated the defendants’ position as follows:

By accepting responsibility for the automobile accident itself, my client is essentially saying, “If the evidence at the end of the case, the evidence satisfies you, the jury, that the accident caused injury to Mr. Burlie, then to the extent you are satisfied that any of his injuries are related claims that are causally connected to the accident itself, to the trauma of the impact of December 26th, then my client accepts your verdict in connecting the two and whatever you feel is appropriately to be awarded in the form of compensation. [Emphasis added.]

[16] Counsel then cautioned the jury against making any assumption that there was any injury based simply on the damage to the vehicle. In this respect he noted that the plaintiff’s son was in the car and “he is not claiming that he was injured”. He further cautioned the jury against making any assumption that there was any injury based simply on the fact that the action was brought. He stressed that “the issue really is what damages did [the plaintiff] suffer that can be causally connected to the accident”. In reviewing for the jury some of the anticipated issues that would arise during the course of the trial, counsel made it quite clear that the plaintiff’s case hinged on the credibility of his subjective symptoms, including, given his pre-accident neck condition, the credibility of his alleged neck injury.

4. The conduct of the trial

[17] The conduct of the trial was consistent with the approach set out in counsel’s opening addresses. The credibility of the plaintiff became the central issue at trial. The following overview from the respondent’s factum summarizes some of the difficulties that the appellant needed to address in that regard:

One of the central issues before the jury was the appellant’s credibility. The jury had to decide, based on the totality of the evidence, whether the appellant was a reliable and believable witness. The respondent’s theory, emphasized from the beginning to the end of the trial, was that the appellant was not a credible witness. In order for the appellant to succeed, it was necessary for the jury to believe that the appellant’s subjective complaints werecredible, a point that was emphasized in the respondent’s opening and closing address.

The appellant’s medical history revealed that he had sustained a serious injury to his neck prior to the 1989 motor vehicle accident. There was always a question of whether he fully recovered from the prior neck injury. If he was not credible, was he simply reiterating familiar symptoms related to earlier neck complaints? He also had a congenital condition of his back of spondylolysis which led to slippage of the discs in his lower back, known as spondylolisthesis.

The appellant did not return to work after the December 26, 1989 accident until March 19, 1990, because of complaints that he had a sore neck. The treatment received by the appellant during this period related solely to his neck. The appellant received full pay from his employer during this period. The appellant made a claim to his accident benefits insurer, with the support of his family doctor, for injuries sustained in the accident. That claim was for the neck only.

During this two and a half month period that the appellant was off work, because of alleged neck pain, but receiving full salary, he admitted under cross examination that he went snowmobiling as many as 15 times, but made no report of back pain associated with this activity to his doctors.

Following his return to work, the appellant returned to his previous job as a forklift driver and worked full time and overtime.

The evidence developed on cross examination of the appellant showed that in 1994, almost four full years after returning to full time work, he was involved in a work related accident where he sustained an injury to his back for which he initially claimed WCB compensation.

Following the 1994 accident, the appellant eventually claimed to be totally disabled and unable to work. He left his job at Lever Bros. and applied to Manulife for long term disability benefits (LTD). This claim was denied as was his application to the Canada Pension Plan to whom he also applied on the basis of total disability. Matthew Burlie appealed Manulife’s denial of his LTD application.

Then, faced with no job and a denial of benefits from Manulife and CPP, he reapplied to his employer, Lever Bros., for his old job back representing that he was employable and willing to return. When his employer refused his old job back, Matthew Burlie filed a grievance through the union seeking to have his job reinstated.

In summary, at one and the same time, Matthew Burlie was claiming to be totally disabled and yet still employable, to be entitled to LTD benefits and to have his old job back. He was confronted with the question - who would believe him at his place of employment knowing what he was claiming from Manulife? Who would believe him at Manulife knowing what he was claiming at his place of employment? He was confronted with the fundamental problem with his claim - credibility - “you can’t have it both ways!” And in this lawsuit when he turned to the jury and asked them to compensate him for his alleged back-related total disability - how could he expect the jury to believe him in the circumstances?

5. The pre-charge discussions

[18] The defendants’ position was the same at the end of the trial as it was during the opening address. Counsel for the defendants during the course of the pre-charge discussion indicated to the trial judge in the absence of the jury that he thought that it was “open” to the jury to answer “yes” to the question on causation and that they “will probably find that there was a causal connection with respect to some aggravation of the neck and some aggravation of the back.” However, when asked by the trial judge as to what his position on damages would be before the jury, counsel stated as follows:

I’m going to indicate that I believe there is some evidence, subject to their accepting his evidence on credibility-— was really only Burlie’s evidence, subjective—that there was some aggravation to the neck. Accordingly, some appropriate amount should be awarded. [Emphasis added]

[19] It remained clear during the course of the pre-charge discussions that a finding that the accident did not cause or materially contribute to any of the injuries was left open to the jury. The trial judge ruled on the final wording of the causation question, with no objections from counsel, as follows:

The first question is more similar to [plaintiff’s counsel’s] question than [defendants’ counsel’s]. The change is grammatical. Here it is. Did the motor vehicle accident of December 26th, ’89, cause or materially contribute to any injury, loss or damage to Matthew Burlie (a material contribution is anything more than a minimal contribution).

As I say, it is grammatical only. The answers are of course yes or no. [Emphasis added.]

6. The closing addresses

[20] In his final address to the jury, counsel for the defendants stated the issue in accordance with his stated intentions at the pre-charge conference:

The conclusion with respect to the assessment of what injuries were caused, I respectfully submit, on a fair evaluation of the evidence is that if there was any injury at all, and you may find reason to question this, it would have been substantially the neck only following the motor vehicle accident.

The only reason I raise a little question mark is that we know that he had a significant pre-existing injury to the neck, one that was very, very upsetting to him. And the essence of his evidence is that following the accident he was concerned that somehow this injury may have disturbed the condition of his neck. Was the neck symptom-free from the 1983 accident, when this accident occurred? You will have to struggle with that.

How disabling was it, either before the accident or after the accident? Remember the skiddooing not only affects the issue of the back, it affects the issue of the neck. [Emphasis added.]

[21] When dealing with the first question, defendants’ counsel stated the following in his closing address:

So did the motor vehicle accident cause or materially contribute to any injury, loss or damage to [the plaintiff]? A material contribution is anything more than a minimal contribution. It flows from this that if you were to conclude and you were to look beyond the recovery from the first accident into what happened at some point historically thereafter, and you were to conclude or be persuaded, “Well, there might be some connection but it’s really only very, very minimal,” then, of course, that would not be a material contribution and you would have to answer no.

7. The trial judge’s instructions to the jury

[22] In her charge to the jury, the trial judge stated that there were three things that the plaintiff had to prove in an action based on negligence.

Firstly, that there was negligence on the part of the defendant; secondly, the plaintiff was injured or suffered damage; thirdly, the negligence of the defendant was the proximate cause of the plaintiff’s injuries or damages. I’m going to deal with each of those three components.

[23] In dealing with the second component, the trial judge indicated amongst other things that

“[a]s a result of the accident, [defendants’ counsel] concedes that the plaintiff did experience an injury to his neck. The defendant disputes that the plaintiff experienced an injury to his back, or, if he did experience an injury to his back, the defendant disputes the severity and the duration.”

[24] Although this would certainly suggest to the jury that there was some concession by the defendants with respect to the more minor injury, that part of the charge was immediately followed by the trial judge’s instructions on the third component of an action in negligence – causation. In doing so, she reviewed the first question with the jury and it is clear from the instructions that the option of answering “no” was left open. The following part of the instructions is particularly relevant:

One of the issues is the plaintiff’s pre-existing condition. In law, if a plaintiff has a pre-existing condition, the defendant who injures him must take the plaintiff as he finds him. And even if the injury appears to be out of proportion to the event, if it is genuine – and this is for you to decide – the damages must be given for the full extent of the injuries, even though they would have been less in the case of a person who did not have this condition.

On the other hand, if a party suffers from some unfortunate condition which has not been caused by the negligence of the defendant, although you would feel sympathetic to that condition you must not allow any damages for that condition.

If you will turn back to your questions, those are my comments about the question on causation. Even if you answer “no” to that first question on causation, you must still answer the remaining questions, so that I know what you would have assessed the damages at if you had said “yes” to the first question. I’m going to repeat that.

Even if you answer “no” to the question on causation, you must still answer the remaining questions on damages.

[Emphasis added.]

[25] The trial judge then reviewed the second question for the jury and instructed them that they were “required to assess these damages on the basis that you find the defendant fully responsible”. Although there is ambiguity in this instruction, I believe that in the context in which this was said, the jury would have understood that they were to assess the damages as if they had answered “yes” to the causation question. Further, in the context of the evidence at trial and the central issue of credibility, it is my view that the jury would also have understood that they were to assess the damages for the injuries that they accepted the plaintiff had indeed suffered, regardless of their cause.

[26] In her later review of the components of question on damages, the trial judge again stated that “[a]ccording to the defendant, the accident on December 26th, 89, caused some injury primarily to the neck and secondarily to the back.” She then reviewed the numbers that the defendants’ counsel had suggested to the jury in his final address. After reviewing the parties’ respective positions on general damages, the trial judge instructed the jury at some length on two fundamental differences between the theories of the plaintiff and the defendant. The first was credibility. The trial judge started her instructions on this point as follows:

The first fundamental difference is [the plaintiff’s] credibility. To arrive at the plaintiff’s conclusion, you have to be satisfied of [his] genuineness. You must be satisfied that he experienced and continues to experience the pain he has described.

To arrive at the defendant’s conclusion, you have to find that [the plaintiff] is not genuine in his report of pain and that he doesn’t experience the pain that he describes.

[27] The trial judge then instructed the jury that the second fundamental difference was causation and started that instruction by saying:

“Even if you believe [the plaintiff] about his pain, you still have to be satisfied that the motor vehicle accident caused or materially contributed to his current condition. … According to the defendant, the motor vehicle [accident] was the cause of only short-lived soft tissue injury and pain associated with it.”

[28] Although one could understand from some of the statements made by the trial judge in her instructions to the jury that the defendants had conceded that the accident had caused at least the “little one”, when the charge is considered as a whole, it becomes apparent that the instructions simply mirrored the approach adopted by defendants’ counsel in his address when he deliberately chose to “walk a very careful line” as he later described on the Rule 52.08 motion, which is discussed below.

8. The verdict and the motion for a new trial

[29] The jury verdict was returned in the form of answers to questions as follows:

Question #1

Did the motor vehicle accident of December 26, 1989, cause or materially contribute to any injury, loss or damage to Matthew Burlie, (a material contribution is anything more than a minimal contribution)

Answer: NO

Question #2

Regardless of your answer to question #1, at what amount do you assess Matthew Burlie’s damages in respect to each of the following headings:

(1) Matthew Burlie’s income loss for the period December 26, 1989 to this day, if any $ 0

(2) The amount Matthew Burlie has to reimburse Lever Bros. in accordance with his employment contract, if any $ 0

(3) (a) Matthew Burlie’s future loss of income, if any $ 0

(b) Has Matthew Burlie failed to mitigate his damages for future loss of income by refusing to have surgery? NO

(c) If yes, to what extent should Matthew Burlie’s future loss of income be reduced? 0%

(4) compensation for Matthew Burlie’s past, present and future pain and suffering and loss of enjoyment of life $ 25,000.00

[30] After the verdict was returned and the jury was polled and discharged, counsel for the plaintiff indicated that he wanted to bring a motion to set aside the verdict on the basis that it is perverse. The intended motion was set for hearing on November 12, 1998. On November 12, counsel for the plaintiff conceded that the trial judge could not set the verdict aside on the basis that it was perverse because that issue was for an appellate court to determine. Rather, his motion was brought under Rule 52.08(1) for an order directing a new trial on the basis that the jury’s answers were conflicting. Rule 52.08(1) provides as follows:

52.08(1) Where the jury,

(a) disagrees;

(b) makes no finding on which judgment can be granted; or

(c) answers some but not all of the questions directed to it or gives conflicting answers, so that judgment cannot be granted on its findings,

the trial judge may direct that the action be retried with another jury at the same or any subsequent sitting, but where there is no evidence on which a judgment for the plaintiff could be based or where for any other reason the plaintiff is not entitled to judgment, the judge shall dismiss the action. [Emphasis added.]

[31] The trial judge ultimately ruled that the answers were not conflicting and she dismissed the motion. Although the question for determination on this appeal, the reasonableness of the verdict, is different from that raised on the Rule 52.08 motion, there is much overlap between the arguments made on that motion and on this appeal. The essence of plaintiff’s counsel’s argument on the motion was that the answer to question 2 conflicted with the answer to question 1. Plaintiff’s counsel submitted to the trial judge that, if liability had been in issue in this case, the jury would have been perfectly entitled to answer “no” to the question of fault, and then go on to assess damages regardless of their finding of no liability. Plaintiff’s counsel argued, however, that because there was no question of fault in this case, “… a jury cannot say there is no damage and then say that the damage is worth $25,000.” Plaintiff’s counsel submitted further that “in retrospect”, given the submissions of the defendants’ counsel in closing, the jury probably should not have been left with question 1, or alternatively, should have been directed to answer it in the affirmative.

[32] The trial judge reminded counsel for the plaintiff that “hours” had been spent earlier in the trial going over the wording of the questions and, in particular, that it was counsel for the plaintiff himself who had advanced the proposition that question 2 be answered regardless of the answer to question 1. No request was made after the closing addresses to amend the form of the question, nor was any objection made to the charge in this respect. The trial judge pointedly commented that counsel’s submissions were “a little late”.

[33] Counsel for the plaintiff conceded that it was now “after the fact” but explained that he had not anticipated that the jury would have answered no to the first question. Rather, he thought that everyone assumed the jury would answer yes to the first question, and then determine if the injury was the “big one” as contended by the plaintiff, or the “little one” as contended by the defendants.

[34] Counsel for the defendant was strongly opposed to the suggestion that he had ever ruled out the possibility that the jury may find that the accident had not caused or materially contributed to any of the plaintiff’s injuries. He submitted that, in his closing address, he had “walked a very careful line, and deliberately so,” to present as minimal an assessment as possible that was consistent with the theory of the defendants without numerically articulating a zero, but leaving that option open to the jury. He stated that it was for that reason that he organized his address “so as to place the defendant’s theory properly and squarely in the very minimal range, leaving open at least a side door for the jury to ultimately conclude on the issue that was fundamental to the trial, fundamental in the opening address”, the credibility of the plaintiff. From the start of the trial and throughout counsel indicated that it had been the defendants’ position that the plaintiff’s case hinged on his credibility. Counsel for the defendants submitted that the jury’s verdict was perfectly consonant with the instructions they were given by the trial judge and entirely consistent with the defendants’ theory of the case.

[35] The trial judge dismissed the motion, on the basis that the jury’s answers to the questions were not conflicting for the following reasons:

1. The jury was instructed to answer Question #2 regardless of the answer to Question #1. By following those instructions, they could not be said to be producing conflicting answers.

2. Question #1 and the preamble part of Question #2 were essentially drafted by [plaintiff’s counsel]. With only a grammatical change to Question #1 (by moving the definition of material contribution from mid-sentence), I accepted the position advanced by [plaintiff’s counsel] on those aspects of the questions. It is not open to [plaintiff’s counsel] to challenge the structure of the questions.

3. Having regard to the evidence and the position taken on the evidence by [defendants’ counsel], it was reasonable for the jury to arrive at those answers.

[36] The trial judge then entered judgment in accordance with the jury’s answer to question 1 and dismissed the action.

[37] In my view, the trial judge’s conclusions on the motion, including her finding on the reasonableness of the jury’s verdict, are entirely supported by the record, as I have outlined above. The appellant essentially repeats the same argument on appeal as on the motion and, in my view, the record does not support his position.

[38] It is therefore my conclusion that the jury’s verdict is not perverse as alleged, having regard to either the parties’ respective positions or the evidence. I would not give effect to this ground of appeal.

C. The Evidentiary Rulings

[39] The appellant submits that the trial judge erred in her evidentiary rulings on the admissibility of expert opinion evidence in three respects: first, she erred in restricting the evidence of Susan Strong after qualifying her as an expert in pain and function; second, she erred in allowing a graph prepared by Dr. Lloyd to be entered as evidence despite its deficiencies; and third, she erred in allowing Dr. Koepfler, a defence expert, to give evidence in areas that were outside her expertise.

[40] I see no merit to the second and third contentions. The graph in question was prepared by Dr. Lloyd during the course of his testimony to illustrate his testimony. Dr. Lloyd was fully cross-examined on this aspect of his testimony and the jury would have been well aware of the deficiencies alleged by the appellant. With respect to Dr. Koepfler’s evidence, the trial judge addressed the very issue raised by the appellant and concluded that the witness’ evidence was not given as a medical opinion in the sense claimed by the plaintiff. The appellant has not demonstrated any error in this ruling.

[41] The appellant’s contention that Ms. Strong’s evidence was unduly curtailed raises an issue worthy of consideration. Ms. Strong was called by the plaintiff in reply. She was qualified as an expert in pain and function. The plaintiff sought to rebut the evidence given by Dr. Lloyd for the defendants that Mr. Burlie’s pain had stopped at a certain point in time given his level of functioning at the relevant time. The plaintiff sought to introduce, through Ms. Strong, evidence on the relationship of pain and function as it applied to him. When Ms. Strong was asked to comment on Dr. Lloyd’s graph, as it related to causation, the trial judge ruled in the presence of the jury that, because Ms. Strong was not a medical doctor, she could not give evidence “for the sole purpose of challenging, undermining, or addressing the causation evidence given by Dr. Lloyd.”

[42] The appellant submits that through this ruling, the trial judge erroneously characterized causation as a medical question only and effectively undermined the value of Ms. Strong’s evidence on this important issue.

[43] I agree with the appellant’s submission that it is not necessary to call a medical doctor to rebut the assumptions made by another medical doctor. So long as the witness is qualified as an expert and is giving evidence within her field of expertise, the evidence can be admitted and can effectively undermine the foundational facts underlying the expert medical opinion. To the extent that the trial judge’s ruling was meant to restrict Ms. Strong’s evidence in that regard, it was erroneous.

[44] However, the appellant has not satisfied me that Ms. Strong was effectively prevented from giving her evidence as a result of the trial judge’s ruling. The record shows that Ms. Strong did give extensive opinion evidence on the relationship between pain and functioning. The appellant has not indicated what other evidence could have been given by this witness that could have affected the verdict. Hence, I would not give effect to this ground of appeal.

D. Disposition

[45] For these reasons, I would dismiss the appeal with costs.

(signed) “Louise Charron J.A.”

(signed) “I agree M. Rosenberg J.A.”

(signed) “I agree S. T. Goudge J.A.”

RELEASED: May 29, 2001

“LC”

[^1]: The appellant’s first claim for relief is for judgment in an amount exceeding $1,000,000 in accordance with his claim at trial. However, counsel for the appellant was not able to advance any basis upon which such relief could be granted by this court.