Stapley v. Hejslet (2006), 221 B.C.A.C. 272 (CA);
364 W.A.C. 272
MLB headnote and full text
Temp. Cite: [2006] B.C.A.C. TBEd. FE.015
James William Stapley (respondent/plaintiff) v. Victor Lloyd Hejslet (appellant/defendant)
(CA031706; 2006 BCCA 34)
Indexed As: Stapley v. Hejslet
British Columbia Court of Appeal
Finch, C.J.B.C., Lowry and Kirkpatrick, JJ.A.
January 26, 2006.
Summary:
The plaintiff was injured in a motor vehicle. The defendant was found negligent and 93% at fault. The plaintiff was contributorily negligent and 7% at fault. The jury awarded the plaintiff $275,000 general damages for nonpecuniary loss. The plaintiff’s most significant complaints were ongoing pain in his neck, mid-back and headaches. The defendant appealed the nonpecuniary damage award, submitting that the award was inordinately high.
The British Columbia Court of Appeal, Finch, C.J.B.C., dissenting, allowed the appeal and substituted an award of $175,000 general damages for nonpecuniary loss.
Damage Awards – Topic 11
Injury and death – General – Continuing pain (incl. fibromyalgia, myofascial and chronic pain syndrome) – The 54 year old plaintiff (51 at time of trial) continued to suffer from chronic pain and had a permanent partial disability – He continued to work at his beloved ranch job (which provided him subsidized housing and the lifestyle he enjoyed) and engage in his recreational activities – However, the jury obviously accepted that the plaintiff’s fear that he would not be able to keep his job much longer because of the strain of working through the pain – The jury awarded $275,000 general damages for nonpecuniary loss – The British Columbia Court of Appeal held that the award was inordinately high – Ordinarily, damages would not exceed $100,000 – However, the plaintiff was entitled to be compensated for the nonpecuniary loss unique to him, which was the potential loss of a preferred lifestyle enjoyed for over 25 years – Balancing that unique circumstance, and the need for the award to reflect a reasonable degree of fairness between similarly situated plaintiffs, the court varied the award to $175,000 – See paragraphs 39 to 113.
Damages – Topic 1543
General damages – General damages for personal injury – Pain and suffering, loss of amenities and other nonpecuniary damages – The British Columbia Court of Appeal stated that given the inclination of lawyers and judges to compare injuries in awarding nonpecuniary damages, it was instructive to reiterate the underlying purpose of nonpecuniary damages: “the amount of an award for nonpecuniary damage should not depend alone upon the seriousness of the injury but upon its ability to ameliorate the condition of the victim considering his or her particular situation. … An appreciation of the individual’s loss is the key and the ‘need for solace will not necessarily correlate with the seriousness of the injury’. … An award will vary in each case ‘to meet the specific circumstances of the individual case'” – See paragraph 45.
Practice – Topic 8806
Appeals – General principles – Duty of appellate court regarding damage awards by a jury – The British Columbia Court of Appeal restated that the court should not interfere with a jury’s damage award “unless the award falls substantially beyond the upper or lower range of awards of damages set by trial judges in the same class of case” – The court noted that the problem was identifying the extent of permissible deviation from the conventional range of awards – Finch, C.J.B.C., dissenting, opined that trial judge’s awards should be measured against what juries were awarding, not the other way around – Finch, C.J.B.C., stated that “this court is asked to accept that the jury’s award is wrong because it is too far outside the range established by trial judges; whereas if jury awards were given their corrective function, the process would be for judges to adjust their awards so that they would approximate what a jury might give in a similar case” – See paragraphs 39 to 40, 114 to 124.
Cases Noticed:
Boyd v. Harris (2004), 195 B.C.A.C. 217; 319 W.A.C. 217; 24 B.C.L.R.(2d) 248; 237 D.L.R.(4th) 193; 2004 BCCA 146, refd to. [para. 39].
Foreman v. Foster (2001), 147 B.C.A.C. 254; 241 W.A.C. 254; 84 B.C.L.R.(3d) 184; 2001 BCCA 26, refd to. [para. 40].
Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; 83 D.L.R.(3d) 452, refd to. [para. 42].
Thornton v. Board of School Trustees of School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267; 19 N.R. 552; 83 D.L.R.(3d) 480, refd to. [para. 42].
Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1; 83 D.L.R.(3d) 609, refd to. [para. 42].
Lindal v. Lindal, [1981] 2 S.C.R. 629; 39 N.R. 361; 129 D.L.R.(3d) 263, refd to. [para. 43].
Penso v. Solowan, [1982] 4 W.W.R. 385; 35 B.C.L.R. 250 (C.A.), refd to. [para. 43].
Black v. Lemon (1983), 48 B.C.L.R. 145 (C.A.), refd to. [para. 43].
Bracchi v. Horsland (1983), 44 B.C.L.R. 100; 147 D.L.R.(3d) 182 (C.A.), refd to. [para. 43].
Leischner v. West Kootenay Power & Light Co. (1986), 24 D.L.R.(4th) 641; 70 B.C.L.R. 147 (C.A.), refd to. [para. 43].
Giang v. Clayton (2005), 207 B.C.A.C. 279; 341 W.A.C. 279; 2005 BCCA 54, refd to. [para. 46].
Mowat v. Orza, [2003] B.C.T.C. Uned. 173; 2003 BCSC 373, refd to. [para. 47].
Dembowski v. Streliev, [1998] B.C.T.C. Uned. 983 (S.C.), refd to. [para. 51].
Smyth v. Gill, [1999] B.C.J. No. 983 (S.C.), affd. (2001), 160 B.C.A.C. 41; 261 W.A.C. 41; 2001 BCCA 650, refd to. [para. 54].
Heartt v. Royal, [2000] B.C.T.C. 614; 2000 BCSC 1122, refd to. [para. 58].
Letourneau v. Min et al. (2003), 178 B.C.A.C. 229; 292 W.A.C. 229; 9 B.C.L.R.(4th) 283; 2003 BCCA 79, refd to. [para. 61].
Schellak v. Barr et al., [2001] B.C.T.C. 1323; 2001 BCSC 1323, varied in part (2003), 176 B.C.A.C. 146; 290 W.A.C. 146; 2003 BCCA 5, leave to appeal denied (2003), 321 N.R. 198; 202 B.C.A.C. 320; 331 W.A.C. 320 (S.C.C.), refd to. [para. 63].
Munro v. Faircrest, [1985] B.C.J. No. 322 (S.C.), refd to. [para. 65].
Nuttall v. Thunder Bay (City), [2001] O.T.C. 94 (Sup. Ct.), affd. (2002), 163 O.A.C. 187 (C.A.), refd to. [para. 69].
Farrell v. White Rock Players’ Club, [1997] B.C.T.C. Uned. 325 (S.C.), refd to. [para. 72].
Corkum v. Sawatsky et al. (1993), 126 N.S.R.(2d) 317; 352 A.P.R. 317 (C.A.), refd to. [para. 72].
Kumlea et al. v. Chaytors et al., [1993] 4 W.W.R. 277; 25 B.C.A.C. 6; 43 W.A.C. 6 (C.A.), refd to. [para. 75].
Meyer v. Wadsworth, [1995] B.C.T.C. Uned. A51 (S.C.), refd to. [para. 77].
Baker v. Manion, [1997] B.C.T.C. Uned. 614 (S.C.), refd to. [para. 79].
Alden v. Spooner et al. (2002), 177 B.C.A.C. 105; 291 W.A.C. 105; 6 B.C.L.R.(4th) 308; 2002 BCCA 592, leave to appeal denied (2003), 320 N.R. 48; 200 B.C.A.C. 320; 327 W.A.C. 320 (S.C.C.), refd to. [para. 83].
Dilello v. Montgomery (2005), 208 B.C.A.C. 165; 344 W.A.C. 165; 250 D.L.R.(4th) 83; 2005 BCCA 56, refd to. [para. 87].
Bob v. Bellerose (2003), 184 B.C.A.C. 218; 302 W.A.C. 218; 227 D.L.R.(4th) 602; 2003 BCCA 371, leave to appeal denied (2003), 329 N.R. 392; 209 B.C.A.C. 160; 345 W.A.C. 160 (S.C.C.), refd to. [para. 90].
Courdin v. Meyers (2005), 209 B.C.A.C. 94; 345 W.A.C. 94; 2005 BCCA 91, refd to. [para. 92].
Reference Re Public Service Employee Relations Act (Alta.) – see Reference Re Compulsory Arbitration.
Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1; [1987] 3 W.W.R. 577, refd to. [para. 101].
Brisson v. Brisson (2002), 168 B.C.A.C. 255; 275 W.A.C. 255; 213 D.L.R.(4th) 428; 2002 BCCA 279, refd to. [para. 107].
Cory et al. v. Marsh (1993), 22 B.C.A.C. 118; 38 W.A.C. 118; 77 B.C.L.R.(2d) 248 (C.A.), refd to. [para. 116].
Counsel:
S.B. Stewart and M. Wilhelmson, for the appellant;
R.M. Moffat and J. Currie, for the respondent.
This appeal was heard on November 9, 2005, at Vancouver, B.C., before Finch, C.J.B.C., Lowry and Kirkpatrick, JJ.A., of the British Columbia Court of Appeal.
The judgment of the Court was delivered on January 26, 2006, and the following opinions were filed:
Kirkpatrick, J.A. (Lowry, J.A., concurring) – see paragraphs 1 to 113;
Finch, C.J.B.C., dissenting – see paragraphs 114 to 130.
