What Makes a Jury Award “Perverse”

In a decision released May 22, 2013, the BC Court of Appeal re-affirmed the fundamental right of a jury to make an award that it deems appropriate, as long as it is supported by some evidence.  In Tong v. Lanser, 2013 BCCA 239, the Defendants appealed a jury verdict in which the Plaintiff was awarded substantial damages for injuries sustained in two motor vehicle accidents.

Since coming to Canada with limited assets, Mr. Tong had been very successful at running his own business.  In addition to operating a flower shop with his wife, Mr. Tong did the maintenance work on rental properties owned by them.  He worked 70 hours per week.

The accidents caused significant injuries to Mr. Tong.  There was some evidence that he had a major depressive disorder, personality changes, chronic pain, and headaches.  As a result of his injuries, he had sold the flower shop, and was unable to do the building maintenance work.  He was 51 years old at the time of trial, and his ability to work had been reduced by over 40%, to approximately 40 hours per week.

After hearing all the evidence, the jury awarded Mr. Tong $100,000 for pain and suffering; $127,000 (before deductions under the Insurance (Vehicle) Act) for pre-trial loss of working capacity; $223,000 for future loss of working capacity; $38,000 for costs of future care; and $12,000 for special damages.  The Defendants argued that the pre and post-trial loss of working capacity, and future care cost awards were “perverse” and “unsupported by any evidence”.  They asked the Court of Appeal to “significantly” reduce the awards.

In dismissing the appeal, Chief Justice Finch stated in the unanimous judgement that, “This is not a case where there is no evidence to support the damage awards under the three contested heads…Whether one regards the three contested awards as modest, or as generous, there is, in my respectful view, no basis on which this Court could properly vary them.”

The Court’s decision upholds a long standing principle in law that a jury award will only be overturned if there is no evidence upon which a jury could reasonably draw the inferences it needs to make to grant the award.  Thus, just because ICBC does not like it, it does not mean that the jury award is perverse.

By Palbinder K. Shergill, QC

Palbinder K. Shergill, QC is a lawyer with Shergill & Company. She maintains a practice in civil and commercial litigation, personal injury, and mediation. She can be reached at 604-597-8111 or by email at main@shergilllaw.com.

© 2013 Shergill & Company, Trial Lawyers