COURT OF APPEAL FOR ONTARIO

DATE: 2002-12-19

DOCKET: C36511

MCMURTRY C.J.O., GOUDGE AND MACPHERSON JJ.A.

B E T W E E N :

HERBY SAMPSON

Plaintiff (Appellant)

• and -

THE HERTZ CORPORATION and JAMES H. ROBBINS

Defendants (Respondents)

Counsel:

Tom David, for the appellant

Derek Smith, for the respondents

Heard: December 18, 2002

Released Orally: December 18, 2002

On appeal from the judgment of Justice Harvey Speigel dated May 22, 2001.

BY THE COURT:

[1] Following a five day trial in a civil action relating to a motor vehicle accident, a jury assessed the plaintiff’s damages as follows:

General damages $ 7,000

Loss of income $ 7,000

Future loss of income $20,000

[2] After the jury made its decision, the trial judge turned to a consideration of the threshold issue presented by s. 266(1)(b) of the Insurance Act, namely, whether the plaintiff had sustained “permanent serious impairment of an important bodily function caused by continuing injury which is physical in nature”. He ruled against the plaintiff and dismissed the action. The trial judge offered very brief reasons in support of this conclusion:

I am not satisfied that on the balance of probabilities the plaintiff has established serious permanent impairment of important bodily function. I have taken into consideration in a limited way the verdict of the jury, but on the whole the decision is mine and it is basically a question of onus. The onus is on the plaintiff and perhaps for reasons which I expressed in my charge I am not satisfied that he has satisfied that onus.

[3] The appellant appeals the dismissal of the action on several grounds.

[4] Two of the grounds advanced by the appellant can be dismissed out-of-hand. There is no basis for the allegation that the trial judge was biased, or appeared to be biased, in favour of the defendants. Nor is there any merit to the appellant’s contention that he did not receive a fair trial.

[5] The appellant submits that the trial judge erred in several respects in his charge to the jury, specifically those components of the charge relating to the drawing of an adverse inference for not calling witnesses, the burden of proof and his review of the medical evidence. Having reviewed the trial judge’s comprehensive and careful charge, we see no merit in this ground of appeal. He dealt in a fair and appropriate manner with these issues.

[6] The appellant’s position at trial was that his medical condition in the years following 1995 in which he was receiving medical attention essentially left him unable to work. In these circumstances, it was entirely open to the trial judge to tell the jury that they may, not that they must, draw an adverse interference from his failure to call his doctors.

[7] We also disagree that the trial judge reversed the onus of proof. The central issue for the jury was whether the appellant’s medical condition following 1995 was what he said it was. The onus on this issue remained throughout on the appellant.

[8] The appellant contends that the trial judge erred in his ruling on the threshold question by relying in part on the jury’s findings given their answers to the questions about damages. We disagree. A judge is permitted to consider the jury verdict in arriving at his own decision on the threshold issue: see Kasap v. MacCallum, 2001 ONCA 7964, [2001] O.J. No. 1719 at para. 8.

[9] Finally, we observe that on the basis of our review of the evidence and submissions in the trial we cannot see any basis for concluding that the trial judge erred in his determination that the plaintiff had not met his onus to establish the type of injury described in s. 266(1)(b) of the Insurance Act.

[10] Accordingly, the appeal is dismissed without costs.

RELEASED: December 19, 2002

“R. Roy McMurtry C.J.O.”

“S. T. Goudge J.A.”

“J. C. MacPherson J.A.”