



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Revane 
          v. Homersham,







2006 
          BCCA 8



Date: 20060110





Docket: CA032998

Between:

Paul 
    Scott Revane

Appellant

(
Plaintiff
)

And

Larry 
    Douglas Homersham

Respondent

(
Defendant
)












Before:


The 
          Honourable Chief Justice Finch




The 
          Honourable Mr. Justice Hall




The 
          Honourable Mr. Justice Mackenzie








Appellant 
          appearing on his own behalf







M.M. 
          Skorah


Counsel for the Respondent




Place 
          and Date of Hearing:


Vancouver, British Columbia




December 12, 2005




Place 
          and Date of Judgment:


Vancouver, British Columbia




January 10, 2006








Written 
          Reasons by
:




The 
          Honourable Mr. Justice Mackenzie




Concurred 
          in by:




The 
          Honourable Chief Justice Finch

The 
          Honourable Mr. Justice Hall





Reasons for Judgment of the Honourable Mr. Justice Mackenzie:

[1]

The appellant appeals a judgment dismissing his action for damages 
    for personal injuries under R. 19(24) of the
Rules of Court
.  
    The issue involves the jurisdiction to revisit a final judgment for damages 
    for personal injuries in a new action arising out of the same tort on the 
    ground of fresh evidence.  The appellant contends that the new evidence substantiates 
    a back injury not apparent on the evidence available at the time of the first 
    trial.  The chambers judge concluded that the earlier judgment was final and 
    barred any further claim.

Facts

[2]

The appellant was injured in a motor vehicle accident on 20 October 
    1985.  He commenced an action in 1986 and the defendant admitted liability.  
    Damages were assessed by Cowan J. in 1988.  Noting the absence of any physical 
    or neurological evidence that supported the appellants complaints, he found 
    that they were subjective.  He concluded that the appellant had suffered a 
    moderate whiplash injury and awarded $20,000 in non-pecuniary damages and 
    $24,000 for past wage loss.  He dismissed the claim for future wage loss and 
    expenses.  The appellant did not appeal that judgment.

[3]

On 5 December 2001 Dr. Stewart Cameron, a neurosurgeon, performed a 
    micro-surgical discectomy which disclosed a large extruded disc fragment affecting 
    the lumbar 4 vertebra root of the appellant's back.  This surgery followed 
    CT scans of the area in March 1992 and November 2001.

[4]

The 1992 CT scan had disclosed a disc bulge at the L4-5 level.  This 
    bulge led to the extruded disc that required surgery in 2001.  Following that 
    surgery, Dr. Cameron for the first time gave a medical opinion that the disc 
    bulge was probably precipitated by the 1985 accident.

[5]

The appellant commenced the present action in 2002.  He acknowledged 
    the earlier action in his statement of claim and relied on the new evidence 
    to support the claim for additional damages.  The chambers judge concluded 
    that the 1989 judgment was a final disposition of all damage claims arising 
    from the 1985 accident and dismissed the action, relying on
Tsaoussis 
    (Litigation Guardian of) v. Baetz
(1998), 41 O.R. (3d) 257 (C.A.).

Analysis

[6]

The rule that a final judgment bars a second claim is characterized 
    as cause of action estoppel: see
Henderson v. Henderson
(1843), 
    3 Hare 100 at 114-15.  Another way of expressing this rule is that all claims 
    by one plaintiff for personal injuries and property damage arising out of 
    the same tort must be advanced in a single action: see
Cahoon v. Franks
,
[1967] S.C.R. 455.  This presents a much more stringent bar than would be 
    faced by an application to admit fresh evidence while an appeal is pending 
    in the original action.  There the test for admissibility is stated in the 
    well known case of
Palmer v. The Queen
, [1980] 1 S.C.R. 759.  
    This avenue was not available to the appellant.  The thirteen years that elapsed 
    between the original trial and the present claim would preclude any attempt 
    to reopen the 1989 judgment by an application to extend the time to appeal.

[7]

The appellant submits that the chambers judge erred in concluding that 
    the disposition of the first action barred a second claim based on newly discovered 
    evidence.  He relies on a passage from
Royal Trust Co. v. Jones
, 
    [1962] S.C.R. 132.  In that case, after reviewing several English authorities, 
    Cartwright J. concluded:

An 
    examination of the authorities leads me to the conclusion that it has long 
    been settled in England that the proper method of impeaching a judgment of 
    the High Court on the ground of fraud or of seeking to set it aside on the 
    ground of subsequently discovered evidence is by action, whether or not the 
    judgment which is attacked has been affirmed or otherwise dealt with by the 
    Court of Appeal or other appellate tribunal.  Section 9 of the
Supreme 
    Court Act
, R.S.B.C. 1936, c. 56, which was in force at the time when Manson 
    J. dealt with the matter (and which is now section 9 of the R.S.B.C. 1960, 
    c. 374) reads as follows:

9. The Court is and shall continue to be a Court of original jurisdiction, 
    and shall have complete cognizance of all pleas whatsoever, and shall have 
    jurisdiction in all cases, civil as well as criminal, arising within the Province.

There 
    appears to be nothing in the statutes constituting and continuing the courts 
    in British Columbia or in the Rules of Court of that Province to suggest that 
    there is any difference between the law and practice on this point in British 
    Columbia and in England; in my opinion they are the same.

[8]

Southin J.A. in
D.K. Investments Ltd.

v. S.W.S. 
    Investments Ltd.
(1990), 44 B.C.L.R. (2d) 1 at 11-15 (C.A.), quoted 
    this passage and considered several of the English cases.  She identified 
    the review jurisdiction as originating in the Court of Chancery, exercised 
    through a process known as a bill of review.
Blacks Law Dictionary
, 
    5th ed., defines a bill of review as In equity practice, a bill, in the nature 
    of a writ of error, filed to procure an examination and alteration or reversal 
    of a decree made upon a former bill, which decree has been signed and enrolled.  
    Thus before the Judicature Acts a bill of review was a remedial procedure 
    available in the Court of Chancery in cases where equity would intervene to 
    remedy an error.  This means that today, a court that reopens a settled, final 
    decision is exercising its equitable jurisdiction.

[9]

Not every case has equitable elements, and the cases clearly reveal 
    limits on the review jurisdiction in common law tort actions.  No case has 
    come to our attention in which a final judgment in a personal injury action 
    has been set aside in a subsequent action.  The cases instead emphasize the 
    important principle of finality.  In
Tsaoussis
,

relied 
    upon

by the chambers judge, the plaintiff was a three year old 
    girl who suffered a head injury when struck by a vehicle.  Her claim for damages 
    was settled two years after the accident on the basis of a medical opinion 
    that the injury was minor and she should make a complete recovery.  The settlement 
    was approved by the court and incorporated into a consent judgment.  Unfortunately, 
    later medical evidence revealed much more serious medical problems attributable 
    to the accident and a second action was commenced to set aside the settlement 
    and consent judgment.  The judge at first instance upheld the second action 
    but her decision was reversed on appeal.  Doherty J.A., delivering a unanimous 
    judgment, said at p. 266 (footnote omitted):

I am not aware of any personal injury case 
    in which a final judgment has been set aside, other than on appeal, because 
    evidence developed after the judgment indicated that the award was much too 
    high or much too low.  I would be surprised to find such a case as it would 
    be entirely inconsistent with our system of one time lump sum awards for personal 
    injuries. As assessments which ultimately prove to be inaccurate are inherent 
    in that scheme, I do not see how the demonstration of that inaccuracy in a 
    particular case could, standing alone, justify departure from the finality 
    principle.

[10]

The historical lack of review jurisdiction in this type of case may 
    be explained by the enduring principle that equity acts upon the conscience; 
    cases where equity intervenes still involve fraud or some other conduct 
    or result properly regarded as unconscionable, a rarity in personal injury 
    cases.  Dean Langdell of Harvard Law School observed in
A Brief Survey 
    of Equity Jurisdiction
(2nd ed., 1908) at p. 30:  There are two large 
    and important classes of torts over which equity practically assumes no jurisdiction 
    whatever, namely, torts to the person and to moveable property.

[11]

New evidence, on its own, is not enough to invoke the review jurisdiction 
    of the courts.  This is reflected in the modern English rule succinctly stated 
    by Lord Keith of Kinkel in
Arnold v. National Westminster Bank Plc.
, 
    [1991] 2 A.C. 93 at 104:

Cause 
    of action estoppel arises where the cause of action in the later proceedings 
    is identical to that in the earlier proceedings, the latter having been between 
    the same parties or their privies and having involved the same subject matter. 
    In such a case the bar is absolute in relation to all points decided unless 
    fraud or collusion is alleged, such as to justify setting aside the earlier 
    judgment.  The discovery of new factual matter which could not have been found 
    out by reasonable diligence for use in the earlier proceedings does not, according 
    to the law of England, permit the latter to be re-opened.

In England, cause of action estoppel absolutely bars 
    a new action in the absence of fraud or collusion.  Cartwright J. in
Jones
,

quoted above
,
considered that the British Columbia and English 
    positions were the same, although the facts of
Jones
were within 
    the exception and cause of action estoppel did not bar a fresh action in that 
    instance.

[12]

In my view, the bald proposition that a final judgment may be set aside 
    on the ground of fraud or
subsequently discovered evidence
 must 
    be qualified. The proposition was laid down in the context of equity and rests 
    on the underlying assumption that the new evidence discloses conduct or a 
    result that equity regards as unconscionable.  But in cases which do not fall 
    within equitable jurisdiction, all of the authorities are consistent with 
    the stringent application of cause of action estoppel.

[13]

Jones
,

on which the appellant relies,

is an illustration of the exception for fraud or collusion recognized 
    by the English rule.  It involved the construction of a codicil, historically 
    within Chancery jurisdiction, and the Supreme Court of Canada allowed a third 
    action to contest issues of unconscionability.  Discussing
Jones
in
D.K. Investments
, Southin J.A. observed at p. 10 that it 
    was unclear whether the foundation of the Supreme Courts judgment was undue 
    influence or duress.  In either case, the conduct alleged was sufficiently 
    akin to fraud to come within the exception.

[14]

D.K. Investments
itself similarly involved evidence with an 
    equitable taint, albeit in reverse of the usual situation: the case involved 
    new evidence to undo a finding of fraud at the first trial rather than to 
    expose a fraud. The facts involved a failed real estate transaction.  The 
    issue at the first trial turned on whether the plaintiff purchaser had removed 
    a subject clause that otherwise would have required the return of its deposit 
    when the transaction collapsed. The defendant relied on a document removing 
    the subject clause signed on behalf of the purchaser.  The purchaser tendered 
    a letter to the real estate agent, setting out conditions for the delivery 
    of the document removing the subject, which were not fulfilled.  The trial 
    judge concluded that the letter was a fake, concocted later, and he granted 
    judgment in favour of the defendant vendor.  Technical expert evidence obtained 
    later from comparison of certain marks on the copy of the impugned letter 
    with another unimpeachable document photocopied from the same copier proved 
    that the letter entered on the first trial could only have been made at the 
    time claimed by the purchaser and was therefore genuine.  On this new evidence, 
    the Court of Appeal ordered a new trial in a second action to undo the erroneous 
    finding of implicit fraud and forgery underpinning the original judgment.  
    Southin J.A. observed that the first trial effectively found the principal 
    of the plaintiff company to be a forger and the new trial was ordered to permit 
    a hearing of the new evidence that could restore his honour.

[15]

Here the appellant contends that the adverse comments on his credibility 
    in the 1988 judgment are in the same category.  I cannot agree.  The findings 
    of credibility resulting from a weighing of the evidence are an unavoidable 
    part of any trial where essential facts are in dispute.  Judges do the best 
    they can to decide such issues fairly but the process is imperfect when the 
    evidence is contradictory and the truth elusive.  Adverse findings of credibility 
    in that context do not carry the same stigma as a finding of fraud or other 
    conduct that offends the conscience.  The findings of the original trial judge 
    do not reflect on the appellants reputation; they simply conclude that the 
    appellant was unable to provide the court with medical evidence that, on the 
    balance of probabilities, was sufficient to support his complaints.  Furthermore, 
    as the chambers judge noted, there is no criticism of the conduct of the defence.

[16]

The authorities emphasize the importance of final judgments.  Southin 
    J.A. in
D.K. Investments
at p. 20 referred to the profoundly 
    important principle that it is in the interest of the community (and of the 
    litigants) that there be an end to litigation.  Doherty J.A. in
Tsaoussis
at pp. 264-65 was equally emphatic:

Finality 
    is an important feature of our justice system, both to the parties involved 
    in any specific litigation and on an institutional level to the community 
    at large. For the parties, it is an economic and psychological necessity. 
    For the community, it places some limitation on the economic burden each legal 
    dispute imposes on the system and it gives decisions produced by the system 
    an authority which they could not hope to have if they were subject to constant 
    reassessment and variation: J.I. Jacob,
The Fabric of English Civil Justice
, 
    Hamlyn Lectures 1987, at pp. 23-24.

The 
    parties and the community require that there be a definite and discernible 
    end to legal disputes. There must be a point at which the parties can proceed 
    on the basis that the matter has been decided and their respective rights 
    and obligations have been finally determined. Without a discernible end point, 
    the parties cannot get on with the rest of their lives secure in the knowledge 
    that the issue has finally been determined, but must suffer the considerable 
    economic and psychological burden of indeterminate proceedings in which their 
    respective rights and obligations are revisited and reviewed as circumstances 
    change. Under our system for the adjudication of personal injury claims, that 
    end point occurs when a final judgment has been entered and has either not 
    been appealed, or all appeals have been exhausted.

[17]

These passages confirm that cause of action estoppel is not merely 
    a technical rule resting on expediency and arcane legal history.  It goes 
    to the heart of a system of civil justice that strives for the truth of the 
    matter but recognizes that perfection is an unattainable goal and finality 
    is a practical necessity.

[18]

I would dismiss the appeal.

The Honourable Mr. Justice Mackenzie

I AGREE:

The Honourable Chief Justice Finch

I AGREE:

The Honourable Mr. Justice Hall


