Case: Langford (City) v. Matthews, 2024 BCCA 214 (CanLII)

Keywords: hockey puck; roller hockey; damages

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Synopsis:

The Respondent is struck by a puck over her right eye while watching a roller hockey game. (See para. 1). She was 60 years old at the time. The Appellants admit liability for the accident, but the parties do not agree on the nature of the injuries or the quantum of damages. (See para. 2). At trial, the Respondent testifies to experiencing “ongoing severe headaches, vision and breathing problems, cognitive difficulties, and low energy and motivation”. The Respondent’s experts opine that she suffered a mild traumatic brain injury, leading to “neurocognitive disorder, persistent depressive disorder, generalized anxiety disorder, and impairment of executive functioning skills”. (See para. 3). The Appellants say these symptoms were related to pre-existing conditions and that the Respondent is not credible. (See para. 4).

The Jury awards damages in the global amount of “over $1 million, including $175,000 for non-pecuniary loss and $804,000 for loss of past earning capacity”. (See para. 5). The Appellants appeal on the basis that the award for past loss of earning capacity is “unsupportable” and “not proportionate”. (See para. 6). The Court of Appeal (Griffin, Grauer, and Horsman JJ.A.) dismisses the appeal. (See para. 7).

Importance:

The Court of Appeal described the applicable standard of review at paras. 32-34. Citing McCliggot v. Elliott, 2022 BCCA 315 at para. 51 and Little v. Schlyecher, 2020 BCCA 381 at para. 6, the Court noted that, for Jury awards, appellate interference is only warranted where the award is “wholly disproportionate or shockingly unreasonable” – in other words, the standard is “even more deferential than the standard applied to a judge alone-award”. (See para. 32).

As to the question of proportionality, the Court observed that “[w]here a jury award is said to be disproportionately high, the appellate court must assume the jury found the facts most favourable to the plaintiff”. (See para. 34; see also Taraviras v. Lovig, 2011 BCCA 200 at para. 36).

The Respondent was an independent contractor and salesperson, earning “upfront sign-up fees” for each credit and debit card processing terminal she sold to businesses. At the time of the accident, the Respondent was offered a more lucrative contract which paid $800 per terminal leased plus “residuals”. (See para. 13). Regarding the award for past loss of earning capacity, the Court of Appeal found the Jury award “perfectly rational in light of the evidence”, including evidence that, if the Respondent signed an additional 125 clients per year, she would have earned $2.8 million in business income for the pre-trial period. (See para. 36). Importantly, the pre-trial period was approximately 9 years (“[s]he was 60 years old at the time of the [a]ccident, and 69 at the time of trial”). (See para. 1). The Court of Appeal rejected the argument that the Jury’s award was “unsupportable on the record” and found it was “open to a properly instructed jury, acting judicially”. (See para. 43).

The Court of Appeal described the purpose of non-pecuniary damages are being “intended to compensate…for pain and suffering caused by…injuries and the consequences of those injuries, including the loss of amenities and enjoyment of life”. (See para. 44). The determination is case-specific – while comparator awards are “important”, the assessment is “generally guided by the non-exhaustive list of factors” described in Stapley v. Hejslet, 2006 BCCA 34 at para. 46. As stated by the Court of Appeal, they include the plaintiff’s age, the nature of the injury, the severity and duration of pain, level of disability, emotional suffering, loss or impairment of life, impairment of family, marital and social relationships, impairment of physical and mental abilities, and loss of lifestyle. (See para. 44).

The Appellant provided a list of cases which established a range of $60-100K. The Court of Appeal found these cases “do not involve reasonably comparable circumstances” to the Respondent. Starting from the proposition that the Jury “found the facts most favourable to the respondent based on the evidence at trial”, the Court found that there was evidence that the effects of the Respondent’s injuries were ongoing, likely permanent, and left her “largely unemployable and housebound”. (See para. 47).

Ultimately, however, the Court of Appeal determined it was sufficient to conclude that the Appellants’ cases are not “reasonable comparable” – that the injuries in those cases did not have the same impact and/or had been resolved by the time of trial. For the Court, the award of $175K, though higher than the range proposed by the Appellants, “cannot be said to be wholly disproportionate or shockingly unreasonable”. (See para. 49).

Counsel for the Appellants: Avon Mersey, K.C. and Elizabeth Segal (Singleton Urquhart Reynolds Vogel LLP, Vancouver)

Counsel for the Respondent: Patrick Dudding and Keith Schille (Acheson Sweeney Foley Sahota LLP, Victoria)

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