Appellant’s non-pecuniary damages increased from $600 to $35,000 in car accident case

By Amanda Jerome

Law360 Canada (September 12, 2022, 2:14 PM EDT) -- The Court of Appeal for British Columbia has allowed the appeal of a man injured in a car accident, increasing the non-pecuniary damages awarded to $35,000 from $600. “The difficulty in this case,” the court explained, was that “the award of $600 is not ‘modest’ but rather nil.”

In Valdez v. Neron, 2022 BCCA 301 the appellant, Nestor Aguillo Valdez, was injured in a car accident in Sept. 2017.

Valdez was “driving a Land Rover Range Rover” and was “hit from the rear by a Honda Civic, owned and driven by the respondents,” Marie Neron and Blair Gosling.

According to court documents, Valdez was “53 years old at the time of the accident” and is “married with two children.” He was employed as “a ramp agent for many years, earning between $43,000 (in 2012) to $97,000 (in 2015).”

Before his accident, in 2017, he earned $73,000. However, Valdez “did not return to work” after the accident, claiming at trial that he “remained disabled as a result of injuries to his neck, shoulders, right knee and left thumb.”

Valdez’s position, the court noted, was that “the accident had greatly altered his life, his ability to earn an income to the date of trial and beyond had been substantially affected in that he had not been able to return to work in any capacity, and that notwithstanding his pre-accident injuries, he had continued to work and earn a substantial income prior to the collision.”

The respondents, on the other hand, argued that Valdez’s “pre-accident physical condition included injuries to his left shoulder, right knee, lower back and left thumb, which had resulted in Worksafe workers’ compensation claims in many of the years prior to the accident.”

The jury was asked “whether the appellant was injured in the motor vehicle accident” in September 2017. The answer was “yes”. The jury was then asked to “assess the damages with the award being: Non-pecuniary damages: $600; Special damages: $900; Income loss to trial: $17,500; Loss of future earning capacity (if any): $0; Cost of future care: $0.” The total in damages was $19,000.

Valdez appealed, raising two issues: “(1) was the jury’s verdict plainly unreasonable in that it was internally inconsistent and contradictory in awarding, on the one hand, $17,500 for income loss to trial and $900 for special damages and, on the other hand, $600 for non-pecuniary damages; and, (2) if so, should the remedy be a new trial or a substitution by this Court of its own award for non‑pecuniary damages?”

Justice Patrice Abrioux, writing for the Court of Appeal, noted that it was “apparent” to him that there was “considerable evidence on the record — both in the medical and other reports, as well as the testimony of the lay witnesses including Mr. Valdez himself — for the jury to make adverse credibility findings with respect to his assertions as to the nature of the injuries sustained in the accident and the extent to which they interfered with his amenities of life and his pecuniary damages.”

In his view, there was “an obvious contradiction between the jury’s award for non-pecuniary and pecuniary damages.”

He noted that the jury found Valdez had “received injuries in the accident and yet awarded him $600 for non-pecuniary damages.”

“In accordance with the law in this province,” he added, the jury was “not provided with any guidance as to the range that could be awarded for non-pecuniary damages.”

Justice Abrioux determined that “an award of $600, in March 2020, to be essentially equivalent to a de minimis award of $0.”

“This cannot be reconciled with the pecuniary loss awards which appear to be predicated on the jury’s view that Mr. Valdez was disabled from working for two and a half months after the accident. The jury’s awards were in conflict and this is a sufficient basis to grant the appeal,” he explained.

In the judge’s view, the “disposition of the appeal” turned on the appropriate remedy.

Valdez submitted that there should be a new trial, while the respondents argued that the Court of Appeal “can and has substituted what it considers to be an appropriate damage award even where credibility has been an important issue at the trial.”

Justice Abrioux explained that the “starting point of the analysis” is to “recognize that there is no prohibition to this Court substituting its award for damages in cases where credibility was a central issue at the trial.”

After a review of the relevant caselaw, the judge determined that “it is, respectfully, difficult to identify a clear reasoning process as to when a new trial has been ordered as opposed to a substitution of an award for damages in cases where credibility is a central issue at the trial.”

“Perhaps the most that can be concluded is that if the record provides an adequate basis for substituting an award then, as was stated in Thomas at para. 67: … In cases where credibility is a significant issue at trial, appellate courts must be particularly careful in the conclusions drawn from the quantum of damages awards, or disparity between them: Hernandez v. Speevak, 2002 BCCA 200,” Justice Abrioux added.

In his view, the record was “sufficient for this Court to assess non-pecuniary damages.”

“The jury’s awards for loss of income and special damages are indicative of its finding that the appellant was disabled as a result of the injuries sustained in the accident for approximately two and a half months. When these awards are juxtaposed to the $600 award for non-pecuniary damages, it is clear that the jury did not accept the appellant’s theory of the case, being that he continued to be disabled and was suffering from the effects of his injuries as at the time of trial, that is approximately two and a half years after the accident occurred,” Justice Abrioux explained.

The judge noted that the amount awarded by the jury for pecuniary losses “covers approximately a two-and-a-half-month period of disability. This is contrasted with what the jury awarded for non-pecuniary damages, which shows that they considered only a very modest amount should be awarded.”

“The difficulty in this case,” he added, is that “the award of $600 is not ‘modest’ but rather nil.”

The judge determined that “this is a case in which this Court can, even being ‘particularly careful’ about drawing conclusions from the quantum of a damage award, exercise its discretion to substitute its own award for non-pecuniary damages.”

Justice Abrioux found it was in “the interests of justice” to substitute the award in order to “avoid the time and expense of a new trial and preclude the appellant from having a second occasion to argue that a greater award was appropriate for all heads of damages notwithstanding the clear views of the jury in this case as to Mr. Valdez’s credibility.”

With regards to the issue of quantum, the judge determined that “the benchmark should not be the lowest possible award, but rather an amount that is fair to both parties and bearing in mind the evidence, outlined above, that the jury probably accepted in reaching its verdict.”

In his view, the award “should be based on the jury having found that the injuries sustained in the accident rendered Mr. Valdez disabled for approximately two and a half months with some ongoing pain, suffering and loss of amenities of life thereafter which resolved at some unspecified period before he was assessed by Dr. Wong in September 2019.”

He noted that “[G]iven: the appellant’s age; that his pain and suffering and loss of amenities of life resulted from a combination of new injuries sustained in the accident and pre-existing conditions; and there was a basis for the jury’s skepticism which arose from unreliable self-reporting to some of the medical providers and his evidence at the trial,” he considered “an appropriate range for non-pecuniary damages in this case to be $30,000 to $40,000 with the mid-point, being $35,000, constituting an award that is fair to the parties.”

In a decision released Sept. 6, Justice Abrioux, with Justices John Hunter and Karen Horsman in agreement, allowed the appeal and substituted “an award of $35,000 for non‑pecuniary damages.”

Counsel for the parties did not respond to request for comment before press time.

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