Giang v. Clayton (2005), 207 B.C.A.C. 279 (CA);
341 W.A.C. 279
MLB headnote and full text
Temp. Cite: [2005] B.C.A.C. TBEd. FE.018
Alice Nu Giang (respondent/plaintiff) v. Wayne Harry Clayton and Financialinx Corporation (appellants/defendants)
Alice Nu Giang (respondent/plaintiff) v. Liang Ye Liang and Mi Xin Zheng (appellants/defendants)
(CA31152; 2005 BCCA 54; 2005 BCCA 364)
Indexed As: Giang v. Clayton et al.
British Columbia Court of Appeal
Finch, C.J.B.C., Southin and Thackray, JJ.A.
February 2, 2005 and July 5, 2005.
Summary:
The plaintiff was involved in two motor vehicle accidents and sued for damages for personal injuries. With respect to the second accident, wherein the plaintiff sustained soft tissue injuries, the jury awarded damages, including $216,000 nonpecuniary general damages, $217,680 for future loss of income and $24,971 for cost of future care. The jury apportioned 10% of the fault for the second accident to the plaintiff. The defendants appealed, arguing that the plaintiff’s counsel’s closing address was so inflammatory, prejudicial and improper that the trial process was unfair and there had been a miscarriage of justice, such that the jury verdict should be overturned and these matters remitted for a new trial. Alternatively, the defendants argued that the jury awards for non-pecuniary damages, loss of future income and cost of future care were so inordinately high and unsupported by the evidence that they should be set aside or reduced.
The British Columbia Court of Appeal, Finch, C.J.B.C., dissenting, allowed the appeal. The court, per Finch, C.J.B.C., and Southin, J.A., rejected the defendants’ argument respecting the plaintiff’s counsel’s address, holding that counsel should have moved for a mistrial after the address, rather than waiting for the appeal to raise the issue. (Thackray, J.A., would have allowed the appeal on this ground). The court, per Southin and Thackray, JJ.A. (Finch, C.J.B.C., dissenting on this point), held that the damage award was inordinately high and reduced it to $225,000.
Barristers and Solicitors – Topic 751
Duty to court – Respecting witnesses – General – Thackray, J.A., of the British Columbia Court of Appeal, commented unfavourably on the practice by counsel of referring to or addressing their adult litigants in court by their first name – See paragraphs 85 and 86.
Damage Awards – Topic 179
Injury and death – Neck injuries – Soft tissue injuries – The plaintiff was involved in two motor vehicle accidents and sued for damages for personal injuries – With respect to the second accident wherein the plaintiff sustained soft tissue injuries, the jury awarded damages, including $216,000 nonpecuniary general damages and $217,680 for future loss of income (i.e., $433,680) – The defendants appealed, arguing that the jury awards for non-pecuniary damages, loss of future income and cost of future care were so inordinately high and unsupported by the evidence that they should be set aside or reduced – The British Columbia Court of Appeal allowed the appeal, holding that the award was inordinately high – The court reduced the award to $225,000 – See paragraphs 22 to 77 and 146.
Damages – Topic 1554
General damages – General damages for personal injury – Calculation and method of assessment – General principles – Southin, J.A., of the British Columbia Court of Appeal, discussed the approach to assessing damages in cases where the plaintiff’s injuries, while not catastrophic or near catastrophic, leave the victim with some possibility, difficult as it may be to assess, of not being able, over the victim’s lifetime, to take some sorts of jobs, or having to retire early, or continuing to work in the same occupation but with pain and discomfort – Southin, J.A., opined that in such cases, it was “artificial in the extreme to divide general damages as is done in catastrophic cases, a practice of only the last 30 years” – She proposed a departure from the practice in non catastrophic type injury cases of separating awards for non-pecuniary damages from other future losses, and treating damages attributable to pain, suffering, loss of amenities (non-pecuniary damages), future loss of income earning capacity and cost of future care all as falling within one global assessment of “general damages” – See paragraphs 58 to 77 – Finch, C.J.B.C. and Thackray, J.A., opined that such a departure from well established practice should not be made without some compelling reason to do so, a direction from the Supreme Court of Canada, or legislative enactment – See paragraphs 13 and 146.
Practice – Topic 5163
Juries and jury trials – Conduct of jury trial – Addresses and remarks of counsel – Improper or inflammatory statements – The plaintiff was involved in two motor vehicle accidents and sued for damages for personal injuries – With respect to the second accident, wherein the plaintiff sustained soft tissue injuries, the jury awarded damages of $433,680 – The defendants appealed, arguing that the plaintiff’s counsel’s closing address was so inflammatory, prejudicial and improper that the trial process was unfair and there had been a miscarriage of justice, such that the jury verdict should be overturned and these matters remitted for a new trial – An issue arose respecting whether the failure of counsel for the defendants to move for a mistrial after counsel’s address disentitled the defendants to an order for a new trial – The British Columbia Court of Appeal held that the defendants chose not to seek the remedy of a mistrial in the court below and ought not to be granted a remedy now – The court stated that by not moving for a mistrial, obviously counsel for the defendants did not consider the trial “unfair” and the court was not prepared to say that counsel was in error – The court stated that as much as it deplored what happened at trial, it would not give effect to this ground of appeal – See paragraphs 6 to 12 and 22 to 33.
Practice – Topic 5167
Juries and jury trials – Conduct of jury trial – Addresses and remarks of counsel – Closing address – [See
Practice – Topic 5163
].
Cases Noticed:
Randall v. Ewart (1989), 38 B.C.L.R. (2d) 1 (C.A.), refd to. [para. 8].
Basra v. Gill (1994), 50 B.C.A.C. 37; 82 W.A.C. 37; 99 B.C.L.R.(2d) 9 (C.A.), refd to. [para. 8].
Brophy v. Hutchinson (2003), 176 B.C.A.C. 258; 290 W.A.C. 258; 9 B.C.L.R.(4th) 46; 2003 BCCA 21, refd to. [paras. 9, 93].
Boyd v. Harris (2004), 195 B.C.A.C. 217; 319 W.A.C. 217; 2004 BCCA 146, refd to. [para. 15].
Alden v. Spooner et al. (2002), 177 B.C.A.C. 105; 291 W.A.C. 105; 2002 BCCA 592, refd to. [para. 15].
Proctor v. Proctor (1819), 2 Hag. Con. 292; 161 E.R. 747, refd to. [para. 25].
Davies v. Taylor, [1972] 3 All E.R. 836, refd to. [para. 51].
McLean v. McCannell, [1937] S.C.R. 341, refd to. [para. 52].
Earnshaw v. Despins (1990), 45 B.C.L.R.(2d) 380 (C.A.), refd to. [para. 56].
Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 62].
Phillips v. South Western Railway Co. (1879), 4 Q.B.D. 406, affd. (1879), 5 Q.B.D. 78, refd to. [para. 72].
Palmer v. Goodall (1991), 53 B.C.L.R.(2d) 44 (S.C.), refd to. [para. 86].
Dale v. Toronto Railroad Co. (1915), 34 O.L.R. 104 (C.A.), refd to. [para. 110].
de Araujo v. Read (2004), 196 B.C.A.C. 271; 322 W.A.C. 271; 2004 BCCA 267, refd to. [para. 111].
Pender v. Hamilton Street Railway Co. (1917), 12 O.W.N. 262 (C.A.), refd to. [para. 114].
Kellum v. Roberts (1915), 19 D.L.R. 152 (Ont. C.A.), refd to. [para. 115].
Johnson v. Laing (2004), 201 B.C.A.C. 161; 328 W.A.C. 161; 30 B.C.L.R. 103; 2004 BCCA 364, refd to. [para. 119].
White v. Gait (2004), 204 B.C.A.C. 234; 333 W.A.C. 234; 2004 BCCA 517, refd to. [para. 135].
Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 136].
Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para 136].
Walker and Walker Brothers Quarries Ltd. v. CFTO Ltd. et al. (1987), 19 O.A.C. 10; 59 O.R.(2d) 104 (C.A.), refd to. [para. 136].
Didluck v. Evans (1968), 67 D.L.R.(2d) 411; 63 W.W.R.(N.S.) 555 (Sask. C.A.), refd to. [para. 139].
Ross v. Lamport, [1956] S.C.R. 366, refd to. [para. 140].
Authors and Works Noticed:
Berger, A View from the Bench, The Advocate (1974), pp. 11, 12 [para. 85].
Canada, Minister of Supply and Services, A Book for Judges – see Wilson, J.O., A Book of Judges.
Olah, John A., and Piercey, Colin, The Art and Science of Advocacy, vol. 2, para. 18.4(a) [para. 130].
Wilson, J.O., A Book for Judges (1990), p. 45 [para. 91].
Counsel:
P.M.E. Abrioux and S.M. Katalinic, for the appellants;
T.R. Berger, Q.C., and E.F. Berger, for the respondent.
This appeal was heard in Vancouver, British Columbia, on October 27, 2004, before Finch, C.J.B.C., and Southin and Thackray, JJ.A., of the British Columbia Court of Appeal. The decision of the court was released on February 2, 2005, including the following opinions:
Finch, C.J.B.C., dissenting – see paragraphs 1 to 21;
Southin, J.A. – see paragraphs 22 to 77;
Thackray, J.A., concurring in the result – see paragraphs 78 to 146.
Supplementary reasons of the court as to costs were released on July 5, 2005.
