Moskaleva v. Laurie, 2009 BCCA 260

• Judge: Rowles, Levine and D. Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 05, 2008
• Jurisdiction: British Columbia
• Citations: 2009 BCCA 260;(2009), 272 B.C.A.C. 164 (CA)

Moskaleva v. Laurie (2009), 272 B.C.A.C. 164 (CA);

    459 W.A.C. 164

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. JL.003

Natalia Moskaleva (respondent/plaintiff) v. Mildred Laurie (appellant/defendant)

(CA034897; 2009 BCCA 260)

Indexed As: Moskaleva v. Laurie

British Columbia Court of Appeal

Rowles, Levine and D. Smith, JJ.A.

June 10, 2009.

Summary:

The plaintiff was struck by the defendant's car while she was crossing with the light in a marked cross-walk. The plaintiff sued for damages for personal injuries. A jury awarded the plaintiff $245,000 for non-pecuniary damages, $300,000 for past loss of income, $1,350,000 for future economic loss, and $32,500 for future care costs. The defendant appealed.

The British Columbia Court of Appeal dismissed the appeal.

Editor's Note: for a related case involving these parties see [2007] B.C.T.C. Uned. 421 (S.C.).

Damage Awards - Topic 102

Injury and death - Head injuries - Brain damage - The plaintiff was struck by the defendant's car while she was crossing with the light in a marked cross-walk - The plaintiff sued for damages for personal injuries - The plaintiff suffered severe and permanent disabilities - She continued to suffer from the effects of a mild traumatic brain injury and post-concussion syndrome - Her symptoms included debilitating headaches, fatigue, depression, memory loss and inability to concentrate, and these problems were exacerbated by anxiety, emotional liability, and frustration - She suffered from cognitive deficits - Her condition was unlikely to improve - The plaintiff's profession, which was central to her life, was forever foreclosed to her because she could not read complex material, could not concentrate, and could not retain what she had read - A jury awarded the plaintiff $245,000 for non-pecuniary damages - The British Columbia Court of Appeal dismissed the defendant's appeal - On the evidence, it was open to the jury to conclude that the accident had a devastating, if not catastrophic, effect on the plaintiff - While the non-pecuniary award was undoubtedly high and might not have been one the court would have made, the court was not persuaded that it ought to interfere in the jury's award - Since the jury's award did not reach the Trilogy's upper limit, the amount of that limit and how the injuries in those cases compared to the plaintiff's injuries were irrelevant considerations - Given the unique nature and purpose of non-pecuniary damages and the deference demanded for review of jury awards, the jury's award was not so "wholly out of all proportion", "wholly disproportionate" or "shockingly unreasonable" as to justify appellate interference - See paragraphs 131 to 132.

Damage Awards - Topic 104

Injury and death - Head injuries - Concussion - [See Damage Awards - Topic 102 ].

Damage Awards - Topic 108

Injury and death - Head injuries - Headaches - [See Damage Awards - Topic 102 ].

Damage Awards - Topic 200

Injury and death - Psychological injuries - Anxiety state or neurosis - [See Damage Awards - Topic 102 ].

Damage Awards - Topic 202

Injury and death - Psychological injuries - Learning disability - [See Damage Awards - Topic 102 ].

Damage Awards - Topic 204

Injury and death - Psychological injuries - Depression - [See Damage Awards - Topic 102 ].

Evidence - Topic 7005

Opinion evidence - Expert evidence - General - Range of cross-examination - A jury trial was held in a motor vehicle accident case - The defendant appealed, arguing that the plaintiff's cross-examination of an expert for the defendant, Dr. Levin, a psychiatrist who originally trained in the former Soviet Union, on his qualifications deprived the defendant of a fair trial - The British Columbia Court of Appeal rejected the argument - Where an expert obtained his or her qualifications might be of some significance in making an assessment of what weight, if any, ought to be given to the expert's testimony - This was not a case of trial counsel throwing out abusive allegations in cross-examination without expectation of having to substantiate them - The questions asked in cross-examination about where and when Dr. Levin had taken his training in psychiatry, and questions about the withdrawal of the Soviet All Union Society of Psychiatrists from the World Psychiatric Association at the time Dr. Levin was learning his profession, were neither abusive nor unsubstantiated - Instead, the plaintiff's questions had a basis in fact acknowledged by the witness - The questions were relevant to the quality and standards of training of a student of psychiatry in Russia in the period when the profession in that country had none of the advantages afforded by membership in the World Psychiatric Association, including consideration of current theory and practice standards - Dr. Levin's subsequent qualification to practice psychiatry in Canada was, of course, also a matter to be weighed by the jury but the fact that he was qualified to practice would not make the questions about his initial training irrelevant - See paragraphs 34 to 49.

Practice - Topic 5163

Juries and jury trials - Conduct of jury trial - Addresses and remarks of counsel - Improper or inflammatory statements - A jury trial was held in a motor vehicle accident case - The defendant appealed, arguing that the opening submissions of the plaintiff's counsel were improper and prejudicial and resulted in an unfair trial - The defendant argued that the opening statement contained no explanation as to its purpose and gave a description of the accident, the mechanism of a brain injury, and the plaintiff's training and employment background, all as if they were established fact, thereby giving the impression that all that was important for the jury to consider was the evidence of the plaintiff's symptoms in the aftermath of the collision - The defendant also alleged that the plaintiff's symptoms and the consequences of the accident were couched in pathos through an emotional appeal to the challenges faced by the plaintiff as an immigrant and the character of those remarks was prejudicial - The defendant also complained that the plaintiff's counsel comment at the conclusion of his opening that the defendant "chose to launch her car forward from that stop sign and not pay attention to who was in the cross-walk" improperly suggested that the accident was volitional and served to demonize the defendant - The defendant also alleged that it was improper to use evidence (photographs) in the opening - The British Columbia Court of Appeal rejected these arguments - The defendant's characterization of what was said in the opening was overstated and, in some instances, inaccurate - The defendant's counsel had advised that he did not object to the use of the photos - There were some phrases or statements in the plaintiff's opening that might have been more carefully couched, but considered in the context in which they were uttered, they were not such as to exclude consideration of the case for the plaintiff - Further, the defendant's counsel told the trial judge he was not seeking a mistrial as a result of anything said during the opening - This deliberate election was a powerful circumstance militating against the submission that a new trial was required to rectify an unfair trial - See paragraphs 19 to 33.

Practice - Topic 5167.1

Juries and jury trials - Conduct of jury trial - Addresses and remarks of counsel - Opening address - [See Practice - Topic 5163 ].

Practice - Topic 5182

Juries and jury trials - Verdicts - Setting aside jury verdict - Inconsistent verdicts - In a motor vehicle accident case, the jury awarded $245,000 for nonpecuniary general damages, $32,500 for future care costs to a plaintiff who suffered severe and permanent disabilities - She continued to suffer from the effects of a mild traumatic brain injury and post-concussion syndrome - She suffered from cognitive deficits - Her condition was unlikely to improve - The defendant appealed, arguing that the "low" award for costs of future care was inconsistent with the substantial award for non-pecuniary damage - The British Columbia Court of Appeal rejected the argument - To determine whether there was an inconsistency between the two awards, it was necessary to look at the foundation for the pecuniary award - The plaintiff's argument, that the amount the plaintiff sought for costs of future care was limited because her medical advisors had said that there was little more that could be undertaken by way of treatment for her injuries, was a persuasive one - There was no foundation for an argument that the jury must have misapprehended or misapplied the principles underpinning a non-pecuniary award based on the award the jury made for costs of future care - See paragraphs 134 to 137.

Practice - Topic 8806

Appeals - General principles - Duty of appellate court regarding damage awards by a jury - The British Columbia Court of Appeal discussed the standard of review of an award of nonpecuniary damages for personal injuries by a jury - The court stated that the test applied on appellate review could not be regarded as well settled in British Columbia - The use of the phrases "inordinately high or inordinately low" and "wholly erroneous" in the context of the review of jury awards ought to be avoided because those phrases tended to result in an incomplete articulation of the standard or to wrongly merge the two standards from Nance v. British Columbia Electric Railway (P.C.) - It was a long-held principle that a jury's findings of fact were entitled to greater deference on review than findings of fact by a judge alone and, accordingly, the disparity between the jury's figure and any figure at which they could properly have arrived had, to justify correction by a court of appeal, to be even wider than when the figure had been assessed by a judge sitting alone - Appellate interference was not justified merely because the jury award was inordinately high or inordinately low, but only in that "rare case" where "it is wholly out of all proportion" or, in other words, when it was "wholly disproportionate or shockingly unreasonable" - The increased deference accorded to jury awards had to be considered when a determination was made about whether an award of non-pecuniary damages had to be altered - The award was not wrong simply because it did not conform with damage awards made by judges - It was generally accepted that it was improper to compare the injuries of a particular plaintiff to those of the plaintiffs in the Supreme Court trilogy for the purpose of making an award - It was therefore inappropriate to "scale" an award for non-catastrophic injuries to the upper limit - See paragraphs 94 to 130.

Practice - Topic 8806

Appeals - General principles - Duty of appellate court regarding damage awards by a jury - [See Damage Awards - Topic 102 ].

Cases Noticed:

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. [para. 19].

R. v. Doyle (M.T.) (2007), 248 B.C.A.C. 307; 412 W.A.C. 307; 2007 BCCA 587, refd to. [para. 31].

Rendall v. Ewert, [1989] 6 W.W.R. 97; 60 D.L.R.(4th) 513; 38 B.C.L.R.(2d) 1 (C.A.), refd to. [para. 32].

Morton v. McCracken et al. (1995), 57 B.C.A.C. 47; 94 W.A.C. 47; 7 B.C.L.R.(3d) 220 (C.A.), refd to. [para. 32].

R. v. Fanjoy, [1985] 2 S.C.R. 233; 62 N.R. 253; 11 O.A.C. 381; 21 D.L.R.(4th) 321, refd to. [para. 39].

R. v. Fair (J.E.) (1993), 67 O.A.C. 251; 85 C.C.C.(3d) 457; 16 O.R.(3d) 1; 26 C.R.(4th) 220 (C.A.), refd to. [para. 39].

R. v. Pavlukoff (1953), 106 C.C.C. 249; 17 C.R. 215 (B.C.C.A.), refd to. [para. 50].

Jones v. National Coal Board, [1957] 2 All E.R. 155 (C.A.), refd to. [para. 53].

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. 70].

Kwei et al. v. Boisclair et al. (1991), 6 B.C.A.C. 314; 13 W.A.C. 314; 60 B.C.L.R.(2d) 393 (C.A.), refd to. [para. 71].

Morris v. Rose Estate (1996), 75 B.C.A.C. 263; 123 W.A.C. 263; 23 B.C.L.R.(3d) 256 (C.A.), refd to. [para. 71].

Pallos v. Insurance Corp. of British Columbia (1995), 53 B.C.A.C. 310; 87 W.A.C. 310; 100 B.C.L.R.(2d) 260 (C.A.), refd to. [para. 71].

Friesen v. Pretorius Estate et al. (1997), 92 B.C.A.C. 232; 150 W.A.C. 232; 37 B.C.L.R.(3d) 255 (C.A.), refd to. [para. 72].

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. 75].

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.), leave to appeal denied [1993] 2 S.C.R. vii; 157 N.R. 319; 32 B.C.A.C. 238; 53 W.A.C. 238, refd to. [para. 87].

Siemens v. Damien et al., [2002] B.C.T.C. Uned. 352; 2002 BCSC 1065, refd to. [para. 88].

Clark v. Royal Oak Holdings Ltd. et al., [2003] B.C.T.C. 275; 2003 BCSC 275, refd to. [para. 88].

Tan v. Chui, [2001] B.C.T.C. 663; 2001 BCSC 663, refd to. [para. 88].

Joel v. Paivarinta et al., [2005] B.C.T.C. 73; 2005 BCSC 73, refd to. [para. 88].

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. 91].

Boyd v. Harris (2004), 195 B.C.A.C. 217; 319 W.A.C. 217; 237 D.L.R.(4th) 193; 2004 BCCA 146, refd to. [para. 91].

Sirna v. Smolinski, [2007] B.C.T.C. Uned. D70; 2007 BCSC 967, refd to. [para. 92].

Lines v. Gordon et al., [2006] B.C.T.C. Uned. C01; 2006 BCSC 1929, refd to. [para. 92].

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. 94].

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. 94].

ter Neuzen v. Korn - see Neuzen v. Korn.

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241; 127 D.L.R.(4th) 577, refd to. [para. 94].

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. 94].

Lindal v. Lindal, [1981] 2 S.C.R. 629; 39 N.R. 361; 129 D.L.R.(3d) 263, refd to. [para. 95].

Stapley v. Hejslet (2006), 221 B.C.A.C. 272; 364 W.A.C. 272; 263 D.L.R.(4th) 19; 2006 BCCA 34, leave to appeal denied (2006), 361 N.R. 391; 240 B.C.A.C. 319; 398 W.A.C. 319 (S.C.C.), refd to. [para. 95].

Lee v. Dawson et al. (2006), 224 B.C.A.C. 199; 370 W.A.C. 199; 267 D.L.R.(4th) 138; 2006 BCCA 159, leave to appeal denied (2006), 361 N.R. 391; 240 B.C.A.C. 319; 398 W.A.C. 319 (S.C.C.), refd to. [para. 95].

Vaillancourt v. Molnar Estate (2002), 176 B.C.A.C. 109; 290 W.A.C. 109; 8 B.C.L.R.(4th) 260; 2002 BCCA 685, leave to appeal denied (2003), 321 N.R. 397; 206 B.C.A.C. 319; 338 W.A.C. 319 (S.C.C.), refd to. [para. 96].

Woelk v. Halvorson, [1980] 2 S.C.R. 430; 33 N.R. 232; 24 A.R. 620; 114 D.L.R.(3d) 385, refd to. [para. 96].

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. 96].

Davies v. Powell Duffryn Associated Collieries Ltd. (No. 2), [1942] 1 All E.R. 657; [1942] A.C. 601 (H.L.), refd to. [para. 97].

Nance v. British Columbia Electric Railway Co., [1951] A.C. 601; [1951] 3 D.L.R. 705 (P.C.), refd to. [para. 98].

Wade v. Canadian National Railway, [1978] 1 S.C.R. 1064; 17 N.R. 378; 22 N.S.R.(2d) 540; 31 A.P.R. 540; 80 D.L.R.(3d) 214, refd to. [para. 104].

Cody v. Leonard, [1996] 4 W.W.R. 96; 66 B.C.A.C. 161; 108 W.A.C. 161; 15 B.C.L.R.(3d) 117 (C.A.), refd to. [para. 106].

White v. Gait et al. (2004), 204 B.C.A.C. 234; 333 W.A.C. 234; 244 D.L.R.(4th) 347; 2004 BCCA 517, refd to. [para. 109].

Courdin v. Meyers (2005), 209 B.C.A.C. 94; 345 W.A.C. 94; 250 D.L.R.(4th) 213; 2005 BCCA 91, refd to. [para. 109].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 111].

K.L.B. et al. v. British Columbia et al., [2003] 2 S.C.R. 403; 309 N.R. 306; 187 B.C.A.C. 42; 307 W.A.C. 42; 2003 SCC 51, refd to. [para. 111].

M.B. v. British Columbia, [2003] 2 S.C.R. 477; 309 N.R. 375; 187 B.C.A.C. 161; 307 W.A.C. 161; 2003 SCC 53, refd to. [para. 111].

McCannell v. McLean, [1937] S.C.R. 341, refd to. [para. 112].

Young v. Bella et al., [2006] 1 S.C.R. 108; 343 N.R. 360; 254 Nfld. & P.E.I.R. 26; 764 A.P.R. 26; 2006 SCC 3, refd to. [para. 114].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1; 126 D.L.R.(4th) 129, refd to. [para. 116].

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. 116].

Le v. Luz (2003), 189 B.C.A.C. 155; 309 W.A.C. 155; 20 B.C.L.R.(4th) 283; 2003 BCCA 640, refd to. [para. 117].

Ferguson v. Lush (2003), 188 B.C.A.C. 118; 308 W.A.C. 118; 20 B.C.L.R.(4th) 228; 2003 BCCA 579, refd to. [para. 128].

White v. Nuraney et al. (2000), 143 B.C.A.C. 86; 235 W.A.C. 86; 80 B.C.L.R.(3d) 307; 2000 BCCA 536, refd to. [para. 135].

Novak v. Lane et al. (2000), 139 B.C.A.C. 155; 227 W.A.C. 155; 2000 BCCA 267, refd to. [para. 135].

Dubach v. Nahal et al., [2003] B.C.A.C. Uned. 157; 2003 BCCA 526, refd to. [para. 135].

Authors and Works Noticed:

Halsbury's Laws of England (3rd Ed. 1955), vol. 3, p. 69 [para. 19].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), p. 935 [para. 40].

Counsel:

J.D. Baker, Q.C., and W.M. Finch, for the appellant;

D.G. Cowper, Q.C., for the respondent.

This appeal was heard on September 5, 2008, at Vancouver, British Columbia, before Rowles, Levine and Smith, JJ.A., of the British Columbia Court of Appeal. Rowles, J.A., delivered the following judgment for the Court of Appeal on June 10, 2009.