[UPDATE: Mr. Justice Sproat’s charge to the jury on the issue of causation has been added to this post in the link immediately above. Thanks to David Cheifetz, who received a copy of the charge from plaintiff’s counsel, Alf Kwinter.]
Campbell v. Julta is an interesting illustration of the often confusing interplay between judge and jury in a motor vehicle “threshold” case.
At trial before Mr. Justice John R. Sproat and a jury, the plaintiff claimed to have suffered from chronic pain and fibromyalgia following a 1999 car accident. After the jury had retired to consider its verdict, Justice Sproat ruled on the issue of whether or not the plaintiff’s injuries met the Insurance Act threshold. He held that they did. He noted that while the plaintiff had had some pre-existing complaints, none of these had appreciably interefered with her life. From 1999 to mid-2002, the plaintiff had been, he said, “in substantial pain and impaired in her physical abilities”. During that period, she had been fired from two jobs and Justice Sproat concluded that these events had been related to injuries suffered in the car accident.
His Honour concluded his dismissal of the defendant’s threshold motion by addressing causation:
[15] Causation need not be established with scientific precision and it is essentially a practical question of fact which can best be answered by ordinary common sense. Practicality and common sense support my conclusion that the August 1999 accident caused or contributed to Ms. Campbell’s condition.
[16] Having found Ms. Campbell to be credible, and having regard to my findings as to the causal connection between the August 1999 accident and her current condition, I need say relatively little in support of my conclusion that she sustained a permanent, serious impairment of an important physical, mental or psychological function.
[17] In this regard the evidence is that she continues to suffer chronic pain for which she is taking a powerful narcotic medication. She is only able to work 1-2 days a week in a retail sales position at $12.00/hour. She has lost her previous active, athletic and social life. Further, there is no evidence of any reasonable prospect of improvement. It would be purely speculative to think that she might be one of the rare individuals, referred to by Dr. Saul, who would recover quickly upon the completion of stressful legal proceedings.
However, the jury took a different view of the case. It was asked to decide whether the accident had materially contributed to the plaintff’s condition as of the time of trial and answered in the negative. (We have been advised that the jury did award non-pecuniary damages of $45,000 and about $3,000 for income loss. The range of non-pecuniary damages suggested by counsel for the plaintiff was $125,000 to $175,000, while the defence had suggested a range of $35,000 to $45,000.)
Today, the Court of Appeal dismissed the plaintiff’s appeal.
(The opening sentence of the Court’s reasons says that the plaintiff had appealed “the jury’s damages award in a civil case involving personal injuries arising out of a motor vehicle accident”. The jury did award some damages, as mentioned above. The issue addressed in today’s Court of Appeal ruling was the jury’s decision with respect to causation. Presumably, the connection to damages is that if the jury had found that the plaintiff’s condition as of the time of trial had been caused by the accident, the award would have been considerably higher.)
On the appeal, the plaintiff argued that the jury’s finding should be set aside because the trial judge’s charge had been deficient in explaining the term, “material contribution” and that this had led to a miscarriage of justice.
(The trial was in June, 2006, which pre-dated by several months the Supreme Court of Canada’s decision in Resurfice Corp. v. Hanke, where that Court made it clear that the “but for” rather than the “material contribution” test of causation is to be used in all but exceptional cases. The timing of the trial decision in Campbell might explain the trial judge’s instruction of the jury based on “material contribution”. If anything though, applying the “but for” test would probably have made the defence’s argument even stronger.)
The Court of Appeal held that the trial judge’s charge had been adequate. (A copy of the relevant portion of Justice Sproat’s charge appears at the beginning of this post.) It went on to observe that the jury was not bound by the trial judge’s view of the facts (reflected in the passages quoted above) and was entitled to accept the defence theory, that the plaintiff’s “condition by the time of trial…could have been caused by factors other than the 1999 accident”.
As with many threshold cases, the trial decision was strange because of the way that decision-making responsibilties are assigned under the Insurance Act. The trial judge is charged with the responsibility of ruling on the threshold issue and this requires him or her to make express findings of causation. Under the wording of s. 267.5(5) of the Insurance Act, for the injury to meet the threshold, the judge must find that “as a result of the use or operation of the automobile, the injured person has died or has sustained permanent serious disfigurement or permanent serious impairment of an important physical, mental or psychological function”. [Emphasis added]
But the jury is the trier of fact, on issues of liability and damages. In the course of deciding those issues, it sometimes also has to rule on causation issues. Here, the jury apparently found that the car accident had not caused the plaintiff’s condition as of the time of trial.
The legislation creates the opportunity for contradictory findings on causation issues, as evidently happened at trial in this case. Given the wording of the statute though, we agree that there does not seem to have been a basis for interference by the Court of Appeal.