Court of Appeal for Ontario

Citation: Sedge v. Waddick, 2008 ONCA 885

Date: 2008-12-23

Docket: C47304

Between:

Elizabeth Sedge, Tom Sedge, Jacob Sedge, a minor, Luke Sedge, a minor, Sierra Sedge, a minor, by their litigation guardian, Tom Sedge

Plaintiffs (Appellants)

and

Mathew Waddick and Heather Waddick

Defendants (Respondents)

Before: O’Connor A.C.J.O., Doherty & Goudge JJ.A.

Counsel:

Ashley Richard Gnyś, for the plaintiffs (appellants)

William G. Woodward, for the defendants (respondents)

Heard and orally released: December 15, 2008

On appeal from the judgment of Justice John Desotti of the Ontario Court of Justice, sitting with a jury, dated May 29, 2007.

ENDORSEMENT

[1] The appellant was in what appeared to be a very minor rear end collision. Initially, according to her, she seemed to suffer only relatively insignificant injuries. However, as time went on, the appellant contended that she developed disabling headaches and chronic pain that eventually left her virtually totally disabled. She sued the driver of the other vehicle.

[2] The defence took the position that the appellant’s disabilities and complaints were exaggerated and properly attributable to a myriad of other causes unrelated to the car accident. As is common in cases of this kind, there was conflicting expert medical evidence and the outcome turned in large measure on the jury’s assessment of the reliability of the appellant’s evidence.

[3] In the course of the appellant’s evidence in-chief, she testified that she had received “around $45,000” to settle her claim against her own insurer. The appellant testified that she had used the money to pay her lawyer and for various medical and rehabilitation related expenses. The defence suggested that some of the expenses claimed by the appellant had in fact been paid through that insurance settlement. Both counsel agree that the evidence concerning the insurance settlement formed a very minor part of the evidence heard in this trial.

[4] The trial judge charged the jury carefully with respect to each of the heads damage and set out the respective positions of the party. No objections were taken to his initial charge at trial and none is taken on appeal.

[5] As is customary in civil jury trials, the trial judge asked the jury to return a verdict by answering a series of questions. The first question was directed at the cause of the plaintiff’s injuries. All of the remaining questions were directed at the jury’s quantification of the various heads of damage. The jury concluded that the accident had caused or materially contributed to “any injury of the plaintiff’s”. They assessed damages as follows:

General Damages/ Pain and Suffering 0

Loss of Income to Trial 0

Future Loss of Income $30,000

Housekeeping and Home Maintenance to Trial 0

Future Housekeeping and Home Maintenance 0

Special Damages $1,000

[6] The jury also assessed the various family law claims at zero.

[7] Upon receiving the jury’s verdict, the trial judge immediately advised the jury that there was a conflict between the jury’s finding that the accident had caused or materially contributed to the plaintiff’s injury and their failure to award anything for general damages. The trial judge instructed the jury that if the accident caused or contributed to the plaintiff’s injuries, it must follow that the appellant had suffered some general damages. He asked the jury to reconsider its answer to the question dealing with general damages. The jury responded to this instruction with a question:

We the jury feel that yes there was an injury sustained from this accident, but it was already compensated by the insurance settlement. This is why the answer to question 2a [re general damages] was $0, and question #1 was “yes”. Do we need to compensate her?

[8] The trial judge answered the jury’s question by explaining to them that the settlement with her own insurer had nothing to do with general damages but was for certain expenses incurred prior to trial.

[9] The jury retired and returned with an award of $50,000 for general damages. Their assessment under the other heads of damage were not changed. In response to the trial judge’s question, the jury indicated that it had dealt only with the question of general damages. The jury were polled and five of the six jurors confirmed all of the answers given to them in respect of all of the heads of damages. The appellant was awarded a total of $81,000.

[10] Counsel for the appellant in his factum advanced several arguments arising out of the events which began with the jury’s initial verdict and culminated in their eventual award of $81,000. In oral argument, counsel distilled these arguments to a single submission. He contends that when it became apparent to the trial judge that the jury had improperly taken the insurance settlement into consideration in fixing general damages, the trial judge should have specifically instructed the jury to reconsider not only their award of general damages, but also their award under the other heads of damage. Counsel submits that if we are satisfied that the trial judge erred in failing to do so, we should assess the damages in this court.

[11] We cannot accept counsel’s argument. This was a jury that was very capable of speaking up and explaining what they did and why they did it. The jury’s initial explanation for awarding no damages for pain and suffering related only to that head of damage. The jury’s question did not suggest that it had used the insurance settlement in any way in determining the awards under the other heads of damage, most of which clearly had nothing to do with the matters addressed in the insurance settlement. We note that the jury did not simply make a zero award under all heads of damage in their initial response thereby suggesting that they had decided that the $45,000 obtained from the appellant’s own insurer was enough to cover all damages suffered by the plaintiff. The jury awarded $31,000 in their initial responses to the questions.

[12] After the jury returned with a reassessment of general damages at $50,000, the trial judge asked the jury whether it had dealt with the other heads of damage. As indicated above, the jury advised the judge that they had reassessed only the general damages. We are confident that this jury would have reassessed the other heads of damage had they in any way used the insurance settlement in assessing those heads of damage. At a minimum, this jury would have spoken up and made it clear to the judge, as they did with the general damage award, that they had taken the settlement into consideration when assessing the other heads of damage.

[13] The trial judge could have told the jury that the insurance settlement had nothing to do with any part of the jury’s assessment of damages. We are not, however, satisfied that his failure to do so in these circumstances resulted in reversible error.

[14] Counsel for the appellant also argues that the jury’s assessment is so plainly unreasonable and unjust as to warrant appellate intervention. Counsel does not challenge the “0” award for lost income, but argues that the other assessments are manifestly unreasonable. This was a case where the evidence reasonably allowed for very divergent views of the nature, extent and cause of the appellant’s various injuries and disabilities. As the trial judge accurately pointed out in his cost award, the appellant faced “incredible evidentiary problems” in her attempt to convince the jury that all of her alleged problems stemmed from what appeared to be a very minor car accident.

[15] The jury’s verdict reflects a determination by them that the accident caused some, not insignificant, problems for the appellant but did not cause the catastrophic result that she claimed. For example, the jury’s award considered in its entirety is consistent with a conclusion that the appellant suffered not insignificant relatively short term pain combined with a minimal long term impairment of her earning capacity. This assessment was one among many that the jury could reasonably have made on this record. We cannot interfere.

[16] The appeal is dismissed.

[17] Costs to the respondents are fixed in the amount of $13,000, inclusive of disbursements and GST.

“D. O’Connor A.C.J.O.”

“Doherty J.A.”

“S.T. Goudge J.A.”