DATE: 20050124

DOCKET: C40132

COURT OF APPEAL FOR ONTARIO

RE:

DONALD IGBOKWE, MARIA IGBOKWE and GEORGINA IGBOKWE and EMMANUEL IGBOKWE, minors by their Litigation Guardian DONALD IGBOKWE (Plaintiffs/ Appellants) – and – ROGER PRICE (Defendant/Respondent)

BEFORE:

DOHERTY, BORINS and SHARPE JJ.A.

COUNSEL:

Alan L, Rachlin

for the appellants

Chris G. Paliare and Andrew K. Lokan

for the respondent

HEARD & RELEASED ORALLY:

January 20, 2005

On appeal from the judgment of Justice John R. R. Jennings of the Superior Court of Justice dated May 9, 2003.

E N D O R S E M E N T

[1] This is an appeal by the plaintiff from the assessment of damages made by a jury. The plaintiff sustained injuries as a result of a motor vehicle accident. He sought damages of over $1,000,000. The jury awarded non‑pecuniary damages of $5,000 and $25,000 for loss of past income.

[2] While the jury was deliberating, pursuant to s. 267.5(15)(b) of the Insurance Act, R.S.O. 1990, c.18, the trial judge determined that the plaintiff had sustained a “permanent serious impairment of an important physical, mental or psychological function”.

[3] The plaintiff raises two grounds of appeal. The first ground as set out in his notice of appeal and factum is the primary ground. He submits that the assessment of damages made by the jury was perverse.

[4] He raises a second ground, based upon an interpretation of s. 267.5(12) and (15) of the Insurance Act, which is that the trial judge in determining the threshold issue, made a determination with respect to causation. This is important because in this case liability for the accident was admitted. However, the central issue on the trial was causation.

[5] The plaintiff and defendant had sharply conflicting positions on whether the motor vehicle accident was a material cause of the plaintiff’s injuries and his medical condition, in particular, his psychiatric difficulties. The jury heard markedly different accounts of the motor vehicle accident from the plaintiff and the defendant. As well, the plaintiff’s credibility was a significant issue and defendant’s counsel in cross‑examination of the plaintiff’s medical experts cast doubt on the underlying facts on which they based their opinions.

[6] The trial judge gave a fair and impartial charge to the jury, which included a specific causation direction based on Athey v. Leonati, 1996 183 (SCC), [1996] 3 S.C.R. 458. On all the evidence the jury was entitled to reject the plaintiff’s position that his ongoing medical difficulties were caused by the motor vehicle accident and to reflect this finding in its assessment of damages. In our view, the jury’s verdict and assessment of damages was not perverse.

[7] Dealing with the second issue, as we understand it the plaintiff submits that in deciding the threshold issue under s. 267.5(15) of the Insurance Act, the trial judge was required to determine whether the plaintiff’s injuries were in fact caused by the motor vehicle accident. It is submitted that the trial judge having done so in this case in his threshold ruling, the jury was bound to conclude that the plaintiff’s injuries were indeed materially caused by the accident. No authority was provided for this submission.

[8] This issue was neither raised at trial nor in the appellant’s factum. It was raised for the first time before this court. We would normally not deal with an issue that is raised for the first time in this court. However, we are not satisfied that the trial judge in making a threshold determination as required by s. 267.5(15) makes a finding of fact on the question of causation. Furthermore, assuming that the trial judge does make such a finding it is not binding on the jury.

[9] For all of these reasons, the appeal is dismissed with costs to the respondent fixed at $15,000 inclusive of disbursements and GST.

“Doherty J.A.”

“S. Borins J.A.”

“Robert J. Sharpe J.A.”