COURT CASES on JURY TRIALS
In British Columbia, either the Plaintiff or Defendant can request that a trial proceed by way of a judge and jury. The only exception is with respect to “fast track” litigation, where jury trials are not allowed. Rule 12-6 of the British Columbia Supreme Court Civil Rules deals with Jury Trials.
There is far more unpredictability in the amount of damages awarded when the trial proceeds by way of a judge and jury, rather than a judge alone. For the most part, the Court of Appeal will not intervene when a jury award is appealed, however there are circumstances where they will.
EXTREMELY LOW AWARD
In Evans v Metcalfe, the Jury awarded a mere $1,000 for pain and suffering in an ICBC claim, an amount described as “shockingly unreasonable” by the trial judge. The British Columbia Court of Appeal set aside the jury verdict, and ordered a new trial.
 I infer the jury did not take an entirely benign view of the evidence of either the plaintiff or certain of her treating physicians. The plaintiff sought substantial awards under a number of heads including past wage loss, special damages, loss of capacity and damages for pain and suffering, the latter often referred to as non-pecuniary damages. As occurred in the recent case of Cahoon v. Brideaux,  B.C.J. No. 853, there was a vast gulf between what the appellant sought by way of compensation and what the jury awarded.
 The jury awarded $6,000 for special damages and $10,300 for past loss of income, the latter award being ordered reduced by 15% for failure to mitigate. On a Motion for Judgment, the learned trial judge set aside the mitigation disposition as being without any evidential foundation. The jury awarded the appellant non-pecuniary damages of $1,000. In the result, the total amount of damages awarded totalled $17,300.
 In the present case, there was a body of medical evidence that did not depend on the veracity or reliability of the appellant plaintiff or her primary treating physician that was supportive of the thesis that she continued to suffer from the sequelae of the April 2006 accident throughout 2006 into the early months of 2007. As I earlier noted, the quantum of the awards made by the jury under the heads of past income loss and special damages are reasonably susceptible of the interpretation that the jury made a factual decision that the effects of the accident did persist for about nine months post-accident.
 In my respectful opinion, these findings of the jury as reflected in their pecuniary awards make the award for non-pecuniary damages very anomalous. It is not impossible that the jury may have taken a quite censorious view of the appellant because of her economic circumstances or because of her conduct in importuning the physician to give her a note in aid of possible financial advantage. These would not be judicious reasons for denying her an appropriate award of non-pecuniary damages. As I observed, there was a body of credible evidence that would support an award under this head significantly greater than the amount awarded at trial. While there can be considerable variance in awards made under this head as the cases cited to us demonstrate, this award seems almost derisory.
 Generally this Court must be very restrained in any interference with a jury disposition as a consistent body of precedent makes plain. However, I have been persuaded that this is one of those rare cases where the interests of justice make intervention appropriate. The degree of anomaly in the respective awards, coupled with a very real possibility of the triers of fact taking an unduly severe view of the appellant’s conduct unrelated to her physical condition persuade me that the award made by the jury for non-pecuniary damages cannot stand.
 We were invited by counsel for the appellant to either fix awards under various heads ourselves, or refer the matter to the trial judge for assessment. The latter course does not commend itself to me for two reasons: the judge has previously expressed certain fairly strong preliminary views and it is of course the right of the defendant respondent to choose the forum of a jury if so minded. As to the possible remedy of this Court adjusting upward awards made by the jury, this is very much dependent on factual issues, including particularly issues of credibility. Historically this Court has been properly reluctant to engage in factual determinations in this class of matter. In my view, the only appropriate resolution of this case is to set aside the order made at trial and order a new trial and I would so order.
EXTREMELY HIGH AWARD
In Ciolli v Galley, the Jury awarded over 12 million dollars to the Plaintiff for three separate motor vehicle accidents. ICBC’S lawyer appealed, arguing that the trial judge did not give proper instructions to the jury. In allowing the appeal, and ordering a new trial, the British Columbia Court of Appeal commented that:
 The trial judge concluded in the case at bar, however, that the defendants’ real complaint was that the jury’s award was inordinately high or wholly out of proportion to the evidence. In her analysis, unless there was “no evidence to support the jury’s findings”, a trial judge was unable to reject a jury’s verdict, and it could not be said there was no such evidence in this case. She dismissed the motion and entered judgment for the jury’s award, subject to the reduction in non-pecuniary damages to $327,000.
 As mentioned earlier, the defendants contend on appeal that the trial judge erred in refusing to grant the mistrial application and in failing to give an even-handed and fair summary of the evidence to the jury; and that the jury’s awards were without foundation or wholly out of proportion to the plaintiff’s losses. I have already noted that the trial judge’s many references to the damages to which Ms. Ciolli was “entitled” may well have led the jury to be confused about the question of causation and about their duty to determine which of the plaintiff’s claims, if any, were properly attributable to the car accidents and in connection with the costs of future care, which were medically justified. Fairness also required that in connection with loss of income-earning capacity and future care costs, the jury be instructed as to the need to apply a discount rate in order to assess the present value of the awards for future contingencies, and of course on the need to reduce such awards to reflect that they did represent contingencies rather than certain losses. The law is clear that a trial judge’s failure to so instruct a jury constitutes error: see, e.g., Bell v. Stubbins (1991) 7 B.C.A.C. 177 at paras. 10-17; Halliday et al. v. Sanrud (1979) 15 B.C.L.R. 4 (C.A.) at 9.
 It is also clear that the awards for non-pecuniary damages and loss of income-earning capacity were wholly out of proportion to what was justified by the evidence before the Court. The non-pecuniary award of $327,000 would have been justified only had the plaintiff suffered a truly catastrophic injury, but the jury was not instructed to this effect. (Counsel for Ms. Ciolli rightly acknowledged before us that her injuries were not catastrophic.) With respect to loss of income-earning capacity, as Mr. Gunn submits, the sum of $5,600,000, if calculated over 23 years (i.e., until the plaintiff reaches age 65), constitutes an award of $243,478 per year. It did not reflect the fact that the award is for a contingency rather than a certain loss, nor a discount rate required to represent the present value of the loss.
 The foregoing errors are more than sufficient to warrant our interference with the jury’s award and to order a new trial.
USE of VISUAL AIDS
In Walker v. Doe, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages. In closing submissions to the jury with respect to the issues of wage loss and cost of future care, counsel for the Plaintiff sought to use non-exhibit visual aids, which the Court permitted.
 Counsel for the plaintiff proposes, in his closing submissions, to: (a) develop a bar graph or time line that explains the period of time that each of past wage loss, future wage loss, and the other heads of damage being claimed cover; and (b) visually depict how a future wage loss claim or future care claim should be calculated from the relevant tables that are found in the Civil Jury Instructions.
 In line with MacKenzie A.C.J.S.C.’s reasons in Basi, I have reviewed both Watt’s Manual of Criminal Jury Instructions and the CJC’s model jury instructions. Both seem to confirm that charts or summaries can be used during a closing to help illustrate or explain the evidence, even if they are not made exhibits at trial.
 In this case, subject to the comments I am about to make, I am satisfied that counsel for the plaintiff can proceed as he wishes. The intended use of the “demonstrative aids” that he has described is modest, finite, and would assist the jury in understanding the issues that are before them. This is also consistent with the guidance provided in each of Bengert, Fimognairi and Basi. Still further, my instructions will contain a caution confirming that neither the time line nor the calculations constitute “evidence” before the jury.
If a Plaintiff or Defendant are not satisfied with the decision of a jury in the Supreme Court, they have the right to appeal the decision to the Court of Appeal. The general test that the Court of Appeal will consider is whether there was any evidence on which a properly instructed jury could make the findings it did.
In Li v. Newson, the Plaintiff was injured as a cyclist when struck by a motor vehicle at an intersection. The Plaintiff initiated an ICBC claim for several heads of damages, including pain and suffering, loss of income, diminished earning capacity, and cost of future care. At trial, the jury found the Defendant to be 75% at fault for the accident, and awarded substantial damages for diminished earning capacity, as well as an award for cost of future care. ICBC’S lawyer appealed, arguing that the Plaintiff did not prove fault on behalf of the Defendant, and that the awards for diminished earning capacity and cost of future care were too high. Although allowing the appeal with respect to the cost of future care, and awarding nothing for this, the Court dismissed the appeals with respect to liability and diminished earning capacity, ruling that the jury did indeed have evidence on which to make the findings as they did.
 What is clear is that on all the evidence it was open to the jury to find that the plaintiff was well into the intersection when the defendant entered on the green light, and that the defendant was passing stopped or slowing traffic to his left.
 The defendant’s factum is replete with references to some of the evidence favourable to the defence case. However, the issue as to liability must be decided on the basis of whether there was any evidence on which a properly instructed jury could make the findings it did. In my view there is no doubt that there was such evidence.
 Counsel for the defendant has not identified any error in the charge by the judge on the issue of liability. In my respectful view, that part of the charge fully and fairly explains the applicable principles and legal rules to be applied.
 There is no basis on which this Court could interfere with the jury’s finding of negligence on the part of the defendant, or on its apportionment of fault. The appeal as framed by counsel for the defendant is essentially an invitation for this Court to retry the facts, which of course we may not do.