



COURT OF APPEAL FOR ONTARIO

CITATION: Hansen v. Williams, 2014 ONCA
    118

DATE: 20140212

DOCKET: C57098

Gillese, Rouleau and Tulloch JJ.A.

BETWEEN

Kristen Hansen, Randy
    Cheynowski and Callum Cheynowski, a minor by his litigation guardian Kristen
    Hansen

Plaintiffs (Respondents)

and

Robert D. Williams

Defendant (Appellant)

Alan Rachlin, for the appellants

Christopher Richard and Katharine Book, for the
    respondent

Heard: February 10, 2014

On appeal from the judgment of Justice Wendy L. MacPherson
    of the Superior Court of Justice, dated April 23, 2013.

ENDORSEMENT

[1]

The appellant appeals from the judgment entered following a jury verdict
    in a personal injury matter. The appellant contends that:

1.  the trial judge erred in her charge to the jury with respect to the
    assessment of non-pecuniary general damages, and

2. the jury award of $200,000 for non-pecuniary damages is inordinately
    high and warrants appellate intervention.

BACKGROUND

[2]

Kristen Hansen brought an action following a motor vehicle accident that
    occurred on July 19, 2007. She claimed damages for a thoracic outlet syndrome
    (neck, shoulder and arm injuries) and headaches. Hansen testified that these
    injuries affected her housework, recreational activities, social life, family
    interactions and employment as a court clerk. Liability was admitted.  The only
    issues to be decided at trial were the injuries sustained and the appropriate
    damages.

[3]

In his closing submissions, counsel for the plaintiffs (respondents in
    the appeal) addressed the question of non-pecuniary general damages as follows:

Now, counsel for the defendant has suggested a sum to you, he
    suggested somewhere between five and $10,000.00 [for non-pecuniary damages]. I
    suspect youll agree with me that that sum is [woefully] inadequate if we
    consider the full extent of [the respondents] loss. His assessment on that is
    based upon assumptions about her injuries that have been disproved by the
    evidence in this case.

If [counsel for the defendant is] assessing the damages for
    pain and suffering at five to $10,000.00, based on the assumption that she only
    had three to six months worth of symptoms arising from this accident then I
    think were fair to extrapolate that if we disagree with that assumption and we
    think that shes still experiencing those symptoms because of the car accident
    today. In counsel for the defendants view, six months is valued at five to
    $10,000.00, whats the rest of [the respondents] life worth?

[4]

The appellants trial counsel objected to this aspect of the
    respondents closing submission.  He expressed concern that the approach put to
    the jury by the respondents counsel  extrapolating a figure over Hansens
    entire lifetime  would result in an excessive damages award. He asked the
    trial judge to address this concern in her charge to the jury.

[5]

The trial judge accepted this submission and charged the jury as follows:

In closing submissions the defendants counsel suggested a
    range of damages of $5,000 to $10,000. In cases of this kind, the law does
    permit counsel to suggest possible ranges of damage. You are not bound to
    accept the range suggested, however, if you accept the submissions of the
    defendants counsel you may well conclude that the range of damages he
    suggested to be appropriate.

The plaintiffs counsel did not suggest a possible range of
    damages but he did suggest one approach would be to extrapolate that if
    $10,000.00 was appropriate for injuries lasting six months then you should look
    at that in determining the value over the plaintiffs lifetime.

This is not a mathematical calculation and that should not be
    the approach that you take in dealing with general damages. You and you alone
    determine the amount that is appropriate to reasonably compensate the plaintiff
    for her pain and suffering, and loss of amenities of life that have arisen as a
    result of the motor vehicle accident and in your deliberations you must do so,
    so as to arrive at an amount that is fair to both parties.

[6]

After the jury had been charged, the appellants trial counsel objected again,
    saying that the jury had not been given enough guidance as to the level of
    general damages that would be appropriate in the circumstances.

[7]

The trial judge did not recharge the jury.

[8]

The jury returned a verdict of $200,000 for non-pecuniary general
    damages; $5,600 for past housekeeping expenses; and $28,000 for future
    housekeeping expenses. The jury awarded no damages for income loss or loss of
    care, guidance and companionship.

ANALYSIS

1.

Did the trial judge err in her charge to the jury with respect to the
    assessment of damages?

[9]

If there was an error in the respondents closing submissions, it was
    corrected by the trial judges charge.  The trial judge expressly directed the
    jury to not undertake a mathematical calculation of the kind suggested by
    counsel for the respondents in his closing argument.

[10]

As
    this court has recognized in the past, the trial judge is uniquely placed to
    evaluate errors and determine whether they can be corrected: see
Fiddler v.
    Chiavetti
, 2010 ONCA 210, 317 D.L.R. (4th) 385, at para. 48.  In our view,
    the trial judge adequately corrected any error that may have been created by
    the respondents closing submission in respect of quantifying non-pecuniary
    general damages.

[11]

The
    trial judges charge did not need to be perfect. Absent an error that amounts
    to a substantial wrong or a miscarriage of justice, or circumstances where the
    interests of justice otherwise so require, a new trial will not be ordered:
Brochu
    v. Pond
(2002), 62 O.R. (3d) 722 (C.A.), at para. 68. Here, the trial
    judge provided the jury with adequate guidance on how to assess damages.  There
    is no requirement that the trial judge provide the jury with a range of
    damages. Section 118 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43
 providing that
    the trial judge may give guidance to the jury on the amount of damages  is
    permissive, not mandatory.  In this regard, it is worthy of note that the trial
    judge told counsel that she would not be giving the jury a range for
    non-pecuniary damages and counsel made their closing submissions with that
    knowledge.

2.

Should the court intervene to reduce the non-pecuniary damage award of
    $200,000?

[12]

An
    appellate court is not to interfere with a jurys damage award unless the award
    is so plainly unreasonable and unjust as to satisfy the court that no jury
    reviewing the evidence as a whole and acting judicially could have reached it:
McLean
    v. McCannell
, [1937] S.C.R. 341, at p. 343;
Housen v. Nikolaisen
,
    2002 SCC 33, [2002] 2 S.C.R. 235, at para. 30.  This is a very high threshold. 
    Appellate courts are not entitled to substitute their own awards in place of
    jury awards simply because they would have arrived at a different amount:
Hill
    v. Church of Scientology of Toronto
, [1995] 2 S.C.R. 1130, at para. 158.

[13]

While
    the award may be high, this court was given very little Ontario jurisprudence
    involving cases of thoracic outlet syndrome.  A significant number of British
    Columbia cases were provided, but those cases suggest that this is an evolving
    area rather than one in which a range has been established.  Moreover, the
    record before this court is thin on Ms. Hansens injuries and the consequences of
    those injuries to her.  This makes it particularly difficult to compare the
    case at bar with the cases that were relied on, when dealing with the
    appellants submission that the non-pecuniary damage award is so far outside
    the range as to warrant appellate intervention.

[14]

Accordingly,
    we are unable to accede to the appellants submission that the award is so
    plainly unreasonable and unjust that this court should intervene.

DISPOSITION

[15]

For
    these reasons, the appeal is dismissed with costs to the respondents fixed at
    $12,500, all inclusive.

E.E. Gillese J.A.

Paul Rouleau J.A.

M. Tulloch J.A.


