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Court of Appeal Upholds $225,000.00 General Damages Award

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Article Summary

The Court of Appeal rejected three grounds of appeal:


1) the trial judge did not err in restricting the scope of testimony of the appellant’s expert;


2) the trial judge did not fail to declare a mistrial due to inappropriate closing submissions by the respondent’s trial counsel; and,


3) the trial judge did not fail to provide sufficient guidance to the jury on the appropriate range for non-pecuniary damages.

In this personal injury action, the defendant/appellant admitted liability.  The sole issue for the jury was damages.  The jury awarded the respondent substantial damages for future loss of income and cost of medical care, together with general damages in the amount of $225,000.00. 

The respondent was 18 years old at the time of the motor vehicle accident.  She sustained an intra-articular fracture of the right talus bone that required orthopedic surgery.  The appellant’s expert gave evidence that there was a high probability she would develop arthritis in her upper ankle joint necessitating a fusion of that joint, which would leave her quite disabled. 

The respondent’s expert was unable to challenge this evidence because the respondent failed to deliver a signed Rule 53 report until midway through the trial.  While the trial judge granted the appellant leave to call their expert to give evidence, the evidence was restricted to the four corners of his report, which did not include the respondent’s potential development of arthritis and need for future surgery.  The Court of Appeal rejected the appellant’s argument that the trial judge’s order unfairly limited the scope of their expert’s evidence noting she gave clear and cogent reasons in her ruling and that the situation was largely the creation of the appellant’s actions.

The Court of Appeal also rejected the appellant’s argument that an appeal was warranted because the trial judge failed to declare a mistrial as a consequence of inappropriate closing submissions by the respondent’s trial counsel.  While the Court of Appeal agreed counsel’s comments, in particular related to the evidence of the appellant’s expert, exceeded the “limits of forceful advocacy”, it held the trial judge gave detailed reasons for her decision to reject the requested mistrial and, instead, address the inflammatory comments by way of a very clear and strong instruction to the jury to disregard the problematic portions of the closing.

Lastly, the Court of Appeal held the trial judge did not err by failing to instruct the jury that the range for general damages suggested by the respondent, being $175,000.00 to $225,000.00, was too high.  The respondent’s argument that the jury’s award of $225,000.00 for general damage was so inordinately high as to warrant appellate intervention was also rejected with the Court of Appeal noting the need for deference to jury damage assessments.

Dunk v. Kremer, 2018 ONCA 274 (CanLII), <http://canlii.ca/t/hr35c>

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