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Surrey motor vehicle accident lawyers – legal update

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As Surrey ICBC and personal injury lawyers we enjoy updating potential clients and the public on the latest ICBC car crash cases. In the latest BC Court of Appeal case Desharnais v. Parkhurst and Romanowski, 2013 BCCA 113, the Court dealt with a jury verdict appeal that the plaintiff alleged was too low because of multiple errors by the trial judge and jury.

The Court of Appeal first dealt with the issue of respect for the jury verdict as follows :
[64]         A jury’s verdict, including damage awards, is entitled to a high degree of deference, and will not be interfered with on appellate review unless it 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:  Melgarejo-Gomez v. Sidhu, 2002 BCCA 19, para. 8.  

In Dykeman v. Porohowski, 2010 BCCA 36, para. 13, Newbury J.A. suggested that where “it is possible to conceive of a ‘logical and rational basis’” for seemingly inconsistent awards, the appellate Court should not interfere with a jury’s awards.

Secondly, the appellant argued the trial judge improperly allowed inflammatory statements by the lawyer for the defendant to be asked without a warning by the judge to the jury.

The Appeal Court found no error in this regard after explaining the law as it applied to marijuana and Viagra usage by the injured plaintiff.
[79]         The plaintiff relies on R. v. Fanjoy, [1985] 2 S.C.R. 233, 21 D.L.R. (4th) 321 for the proposition that a trial judge’s failure to restrain abrasive or abusive cross-examination may be an error in law.

Fanjoy also stresses the discretionary nature of judicial interference in cross-examination. Justice McIntyre stated, at 239:

… The discretion to intervene in a cross-examination must, of course, be exercised judicially. Its exercise does not rest on legal considerations alone, but will depend as well on the facts and circumstances in each case, and will not be determined by the simple application of a fixed rule of law. The decision to exercise the discretion to intervene in cross-examination, or to refrain from intervention, is one involving considerations of both law and fact and cannot be said to be a question of law alone. Each case will depend on its own circumstances, and no doubt there will frequently be difficulty in deciding from case to case whether the point has arrived in a cross-examination where the trial judge should intervene.

[80]         It has been said elsewhere that the evaluation of whether or not inflammatory remarks are prejudicial and warrant a warning are matters of discretion for the trial judge:  Smagh v. Bumbrah, 2011 BCCA 281, para. 8.  These determinations are entitled to deference on appeal.

[81]         The first statement to which the plaintiff takes exception arose from a question that suggests that the plaintiff may have consumed marijuana.  As noted above, no objection to this question was made at the time this question was asked. Rather, the objection was made after the lunch break, that same day. The trial judge decided to instruct the jury regarding the matter during his closing, rather than to interrupt the cross-examination. I see no error in this. It was within the trial judge’s discretion how best to address the plaintiff’s concern.

[82]         Second, the plaintiff points to the question concerning his use of Viagra as an example of an inflammatory remark warranting appellate intervention. I do not agree. The objection was not on the grounds that the question was prejudicial to the plaintiff. Rather, it was that the question was not relevant. The trial judge determined that the question was not relevant, and the jury would have reasonably inferred that was his determination given that they had heard counsel’s objection. Counsel did not request that the jury be given a warning about the question and did not appear to be concerned about the potential prejudicial effect that the comment may have had on the jury. In fact, plaintiff’s counsel referred back to the question in his closing submission:

From the evidence, the plaintiff had been taking Viagra before.  My friend wanted to know for which girlfriends.  Well, that was an interesting question. But in any event, there — when it comes to the costs that Ms. Burton puts forward, as I had indicated, the plaintiff is entitled to be put in the position he would have been in.

[83]         Based on the above, I do not see the Viagra question as warranting appellate intervention.

[84]         I am also of the view that the trial judge properly managed the general objection to alleged inflammatory remarks to be made in the defence closing address.  The trial judge advised counsel to sort the matter out before the submissions were made. As no objection was made after the closing submissions, the trial judge had no reason to assume that the plaintiff continued to object to the alleged inflammatory remarks.

[85]         Having reviewed the materials, I do not see the conduct of defendants’ counsel, including the remarks referred to by the plaintiff in this appeal, as warranting intervention from this Court.



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