Juries need to be given defence in personal injury cases

Although juries are understood to be the “great equalizers” and the community’s guide to what is just, to those peering in it appears that the appellate courts are acting as gatekeepers and have little difficulty reducing high awards in personal injury claims regardless of what the jury finds, Toronto critical injury lawyer Patrick Brown writes in The Lawyer’s Daily.

“Judicial intervention with jury awards is especially apparent in fatality claims. Simply put, who is better able to assess what the value should be for the loss of care, guidance and companionship in a wrongful death case than six jurors. They have children, parents and siblings. They have all likely experienced death,” writes Brown, partner with McLeish Orlando LLP and founder of Bike Law Canada.

‘No better forum’

For example, in this case, says Brown, the trial judge wrote: “I think that there is no better forum than a jury composed of six representatives of the community to perform the impossible task of deciding what value should be placed upon the loss to family members of the companionship. The fact that it arrived at amounts which are substantially higher than I might have awarded, or which most judges in this province might have awarded, does not indicate to me that this jury was acting unreasonably.”

However, Brown says, the majority of the Ontario Court of Appeal disagreed with the trial judge’s dissenting opinion and reduced a mother’s award for the loss of her nine-year-old daughter from $115,000 to $50,000.

“When it comes to deference to high awards for pain and suffering, the Court of Appeal has also demonstrated a willingness to intervene and reduce the awards, despite damages being awarded at or within the cap,” writes Brown.

In another case, a jury found a man was entitled to $500,000 for pain and suffering after his bowel had been perforated and his back broken, and evidence was led that his dream of playing for Canada’s national volleyball team had been destroyed.

Reduced the award

“However, when judgment was sought, the trial judge refused to follow the jury and reduced the award to $274,000 (which was the cap at the time),” writes Brown. Before the Court of Appeal, he adds, the award was further reduced to $150,000.

As Brown adds, things are not much different when it comes to punitive damages.

“Members of the community are in the best position to offer guidance on what the financial penalty should be to punish, deter and denounce reprehensible conduct. Punitive damages represent the ‘repugnance of the public,’” he writes.

Although the jury in this case awarded $100,000 in punitive damages when a drunk driver ran a stop sign and caused a brain injury to a student, Brown says the Court of Appeal reduced the award to $20,000 on the basis that it was “not rational to meet the objectives of retribution, deterrence and denunciation.”

As Brown writes, these decisions make limited reference to the ‘high’ level of deference to be given to juries.

“As a result, any high award by a jury is automatically appealed by an insurance industry that not only can afford the appeal, but will likely benefit from a reduction of damages, too,” he adds.

Despite the judicial intervention, writes Brown, the appellate courts are reluctant to intervene when a jury awards nothing or very little in cases involving a debilitating mental health diagnosis and chronic pain.

‘None were appealed’

“Since January 2016, there have been 21 jury verdicts involving these types of injuries. In 14 of the decisions, the judge held that the evidence revealed the plaintiff suffered a serious and permanent impairment, a finding that should support an award well above $100,000 for pain and suffering. However, in most of these cases, the juries awarded $40,000 or less, with some as low as $10,000. With the exception of one, none were appealed,” he says.

As Brown writes, plaintiffs cannot afford to appeal these awards because of resources and high costs, while the defence bar argues that these jury verdicts support the proper range of damages that should be presented by the judge to the jury.

“It is no wonder that the proponents of the jury system have been defence counsel and the insurance industry. The high awards get hit and the low ones stick. Unless deference is given to jury decisions on both ends and the ability to appeal is financially feasible for all litigants, juries will continue to be a tool for powerful institutions to stack the deck,” writes Brown.