Recently, in Taraviras v. Lovig, 2011 BCCA 200, the BC Court of appeal reduced the damages for pain and suffering awarded to the plaintiff by a jury from $300,000 to $200,000.
When cases are decided by juries the lawyers arguing the case are not allowed to suggest what the award for pain and suffering damages should be or to point to ranges of awards from cases decided by judges or other juries. The jury must pick, without any frame of reference, a fair number to compensate the plaintiff. Given this lack of information, many jurist have argued that it is improper for a Court of Appeal to second guess a jury's assessment of pain and suffering damages given that the assessment reflects our community's sense of what the damages should be and if a judge made standard is to be applied at the appellate level, then lawyers should be allowed to argue to jurors what an appropriate award for pain and suffering damages should be.
It is also argued that defendants get two chances to win the case, so to speak, if non pecuniary damages awarded by juries can be reduced on appeal. First, the defence gets the chance to argue the case and hope a jury will give a small award. Second, they get to ask the Court of Appeal to reduce the award if it is large. This argument makes some sense as it is extremely rare for a court of appeal to increase a jury's award for pain and suffering damages.
In Taraviras v. Lovig the Court discusses these issues and the principles to be considered when a reduction of a pain and suffering award is sought as follows:
Non-Pecuniary Damage Award
 The first issue for consideration is the appellants’ argument that the award for non-pecuniary damages is wholly out of proportion to the loss Mr. Taraviras suffered.
 The appellants ask this Court to consider that Mr. Taraviras was suffering from some pre-existing pain, he had degenerative changes in his spine, he had previously broken a vertebrae in his spine and he had required chiropractic treatment before the accident. He also suffered from migraines before the accident. They note, not all Mr. Taraviras’ pain was referable to the 2002 accident. They note that Mr. Taraviras’ pain had largely resolved by 2005 at the latest. They note that approximately four months after the accident, Mr. Taraviras told Dr. Hii, his general practitioner, that his lower back had improved by 75 percent. In October 2005, Mr. Taraviras reported to Dr. Apel that he was about 80 percent improved and to Dr. Hershler, the same thing three days later. By the time of the trial, Mr. Taraviras rated his back pain as a one or two on a ten point scale. The appellants argue that the complaint of burning or tingling down his left leg could not possibly be related to the 2002 accident because Mr. Taraviras did not report this pain until three and one half years after the accident. The appellants note that his numerous accidents following 2002 interfered with his recovery, aggravated his injuries, and demonstrated a “striking failure to take care ofhimself and thus mitigate his losses”. The appellants note that Mr. Taraviras’ level of activity, both at work and in his private life, suggests he is in fact able to function in a reasonably normal way. They note that Mr. Taraviras has continued to “work full time in the same position, albeit with some accommodation, over the last eight years, and he has been able to pursue his interest in real estate by purchasing and managing several rental apartments”. I think it reasonable to assume, given the verdict reached by this jury, that the jury did not accept these arguments raised at trial, and again on appeal by the appellants.
 The appellants argue that Mr. Taraviras’ injuries and symptoms fall far short of the kind that would warrant an award in the upper range of non-pecuniary damages. The appellants ask this Court to substitute an award in the range of $40,000 to $100,000 for non-pecuniary damages.
 In Boyd v. Harris, 2004 BCCA 146, K. Smith J.A. commented upon the important role of juries and the deference that ought to be accorded a verdict of a jury. At paras. 9-12 he stated: ... Because juries are not made aware of the range of awards that trial judges have established in previous cases, common sense and collective values must guide their deliberations. As a result, jury verdicts are unpredictable or, at least, less predictable than those of trial judges. This uncertainty of result inherent in a jury trial of a claim for damages, coupled with the additional costs associated with that mode of trial, must surely spur the parties to reach an accommodation short of trial. Risk, an important factor in settlement negotiations, is amplified when the trial is to be by jury; the range of settlements acceptable to the parties is thereby broadened and settlement prospects are enhanced. Appellate interference with jury awards, unless circumscribed, will tend to remove from the system this incentive to settle cases.
 Further, juries bring to the assessment of the evidence a common sense that derives from wide and varied experiences in life. As well, a jury's assessment of damages is influenced by the community's values and its opinions of what would be fair, just, and reasonable in the circumstances. Mr. Justice Cory referred to the qualifications of juries to assess damages in Hill v. Church of Scientology,  2 S.C.R. 1130 ¶ 158 where he said:Jurors are drawn from the community and speak for their community. When properly instructed, they are uniquely qualified to assess the damages suffered by the plaintiff, who is also a member of their community. This is why, as Robins J.A. noted in Walker v. CFTO Ltd. (1987), 59 O.R. (2d) 104 (C.A.), at p. 110, it is often said that the assessment of damages is “peculiarly the province of the jury”. Therefore, an appellate court is not entitled to substitute its own judgment as to the proper award for that of the jury merely because it would have arrived at a different figure.
 On the other hand, while great deference must be afforded to jury awards, appellate courts have a responsibility to moderate clearly anomalous awards in order to promote a reasonable degree of fairness and uniformity in the treatment of similarly-situated plaintiffs. As well, outlier awards, if not adjusted, could lead to a perception that the judicial system operates like a lottery and to a consequent undermining of public confidence in the courts.
 The difficult problem is how to identify the extent of permissible deviation from the conventional range of awards. [...] what is the acceptable range and what is an excessive deviation from the range in a given case are questions on which there may be reasonable differences of judicial opinion.And at para. 42, he concluded: ... Requiring a greater margin of deviation in the case of a jury award respects the parties' original choice to have the damages assessed by a jury rather than a trial judge. It also promotes the instructional function of jury awards, in the sense that, to some extent, departure from the conventional range established by trial judges may serve as a corrective to the views of trial judges by shifting the range so that it more accurately reflects current community standards.
 The standard of review on appeal of a non-pecuniary jury verdict was described recently in Moskaleva v. Laurie, 2009 BCCA 260 at para. 127. There, Rowles, J.A. speaking for the Court said, “in the case of a jury award, appellate interference is not justified merely because the award is inordinately high or inordinately low, but only in that ‘rare case’ where it is 'wholly out of all proportion' or, in other words, when it is ‘wholly disproportionate or shockingly unreasonable’” (citations omitted).
 Importantly, she drew a distinction between this Court’s standard of review on an appeal of a judge alone award (that of “inordinately high or low” or “wholly erroneous”), as compared to the more deferential standard of review on an appeal of a jury verdict. Rowles J.A. confirmed what K. Smith J.A. said in Boyd at paras. 5 and 41-42, that a jury award of damages should be allowed “a ‘greater margin of deviation’ from the range that would be considered reasonable if the damages were assessed by a trial judge” (Moskaleva at para. 110).
 This case is not one in which the victim has suffered catastrophic injury. Mr. Taraviras’ permanent disability is, by all accounts, a moderate one, thus it is irrelevant how Mr. Taraviras’ injuries compare to those of the plaintiffs in the Supreme Court Trilogy (Moskaleva at para. 132). What is relevant is how the non-pecuniary award in this case correlates to Mr. Taraviras’ particular circumstances.
 In my review of the non-pecuniary jury verdict in this case, I must accept that the jury resolved all evidentiary conflicts in favour of Mr. Taraviras. I have described some of his evidence and I proceed on the assumption that the jury did accept this evidence. In other words, the question to be resolved is – taking Mr. Taraviras’ case at its most favourable, is the award nevertheless so exorbitant that it would shock this Court’s conscience and sense of justice? (Moskaleva at para. 116; Whiten v. Pilot Insurance Co., 2002 SCC 18).
 At paras. 41-42 of Boyd, K. Smith J.A. provided a helpful structure to the analysis of an alleged ‘wholly disproportionate’ non-pecuniary award: Our first task is to determine whether the decisions cited by the appellant are reasonably comparable to this case and whether they suggest a range of acceptable awards. Then, we must determine whether this award is within that range and, if not, whether it falls so substantially outside the range that it must be adjusted.
 The identification of comparable cases is not a simple task. Each case is unique. The process should be systematic and rational, not conclusory. We must therefore search for common factors that influence the awards, such as, most obviously, the age of the plaintiff and the nature of the injury. However, comparisons can be made on a more abstract level, as well. The factors to be considered include the relative severity and duration of pain, disability, emotional suffering, and loss or impairment of enjoyment of life. The awards in the comparable cases must be adjusted for inflation. When the appropriate range is identified, adjustments must be made for the particular circumstances of this case, including the plaintiff’s need for solace, which must be considered subjectively. Then, in determining whether the award falls so far outside the acceptable range as to justify appellate interference, we must make allowance for the fact that the award was assessed by a jury. [Citations omitted.]
 Counsel for Mr. Taraviras argues on appeal that this Court should restrict its review of what I would call the comparator cases, solely to appellate reviews of jury awards. The approach favoured by the respondent is based upon the Chief Justice’s dissent in Stapley v. Hejslet, 2006 BCCA 34, in which he noted that the present regime of using comparator cases is a “kind of ‘win win’ equation for the defence, and has the appearance of unfairness” (Stapley at para. 123).
 Mr. Taraviras further argues that Moskaleva, and perhaps Ferguson v. Lush, 2003 BCCA 579, support the approach advocated by the Chief Justice in Stapley. In Moskaleva, Rowles J.A. said in respect to comparison of jury verdicts to judge alone awards, at para. 128: Support for the view that in order to determine whether a jury award is “wholly out of all proportion” or “wholly disproportionate or shockingly unreasonable”, it is appropriate to compare the award under appeal with awards made by trial judges sitting alone in “the same class of case” may be found in Cory, but that approach may not be in accord with Lindal. Criticism of that approach is found in Gibbs J.A.'s dissent in Cory at paras. 49-52; Ferguson v. Lush, 2003 BCCA 579, 20 B.C.L.R. (4th) 228 at paras. 33-43; and Finch C.J.B.C.’s dissent in Stapley at paras. 116-124. In Ferguson, Thackray J.A. expressed some doubt about the comparator approach (at paras. 45-50), on the basis that it is illogical to withhold from a jury comparator cases, but then hold that the jury has made a palpable error by assessing damages wholly out of proportion to similar cases (see also: Thackray J.A.’s dissenting comments in White v. Gait, 2004 BCCA 517 at para. 70). Nevertheless, he accepted that such an approach has been adopted by this Court (Ferguson at para. 52). As I understand the judgment of Rowles J.A. in Moskaleva, she did not reach a firm conclusion about the correctness of the comparator approach. From my review of these authorities, I conclude that it is appropriate and logical to use comparator cases as a rough guide to assist the court on appellate review: Cory, Cody, Boyd, Smith J.A. in Lam v. Main, 2003 BCCA 517 at para. 8.
 In my view, the concerns expressed in the dissenting reasons of Gibbs J.A. in Cory, and Finch C.J. in Stapley are adequately addressed by the more deferential standard of review applied to jury awards and the greater ‘margin of deviation’ which is permitted in the range of such awards. The standard expressed by Rowles J.A. in Moskaleva, and the approach described by K. Smith J.A. in Boyd strike the appropriate balance between the need to ensure fairness and uniformity on the one hand and the corrective, settlement-enhancing function of juries on the other.
 There is no doubt that a jury award ought not to be set aside for failing to conform to judge alone awards (Cody at para. 125), but in my view, to fail to consider comparator cases as some sort of rough guide could “lead to a perception that the judicial system operates like a lottery and to a consequent undermining of public confidence in the courts” (Boyd at para. 11). At para. 49 of his dissent in Cory, Gibbs J.A. acknowledged that comparator cases might serve this limited purpose. I see nothing inconsistent with the test enunciated in Moskaleva and the use of comparator cases to inform the appellate court in the application of the Moskaleva test. To do otherwise leaves the appellate review as a wholly intuitive exercise which risks inconsistent results from case to case.
 Thus, I view the task on appellate review of an award alleged to be inordinately high is to assume that the jury found the facts most favourable to the plaintiff, and then to first compare the award to judge alone assessments in a generous way, and then to assess the appropriate “margin of deviation”’ applying the Moskaleva test – that is, whether the award would “shock the court’s conscience and sense of justice”. As to what deviation would shock the court’s conscience, I do find other appellate cases to be a useful guide. It is clear from the authorities discussed that considerable deference must be accorded a jury verdict and even where on appellate review the award must be reduced, such reduction should continue to reflect the views of the jury implicit in the verdict.
 The appellants rely on the following cases in support of their position that an assessment of Mr. Taraviras’ non-pecuniary claim, before a judge sitting alone, would have fallen in the range of $40,000 - $100,000: Verhnjak v. Papa, 2005 BCSC 1129; Jang v. Khera, 2002 BCSC 60; Dawson v. Gee, 2000 BCSC 147; Notenbomer v. Andjelic, 2008 BCSC 509; and Ayoubee v. Campbell, 2009 BCSC 317.
 Ms. Notenbomer was, at her trial, a 45-year-old insurance underwriter. As a consequence of a motor vehicle accident, she suffered a permanent partial disability owing to continuous low back and sciatic pain. She did have some pre-existing back problems. She underwent two spinal surgeries. The judge concluded that the motor vehicle accident caused or contributed to her injuries and assessed non-pecuniary damages of $100,000. From the judge’s description of the symptoms, I would conclude that Ms. Notenbomer’s symptoms were more severe than those suffered by Mr. Taraviras.
 Mr. Ayoubee was a 34-year-old man at the time of his trial. He suffered a herniated disc, with associated pain in his leg. He suffered from constant pain in the six years between the time of the accident and the trial. He had deferred surgery on his back, but by the time of the trial, he had determined that he would likely undergo surgical repair of the badly herniated disc. His injury and symptoms are somewhat comparable to Mr. Taraviras’. He was also awarded $100,000.
 I am satisfied that both of these cases are appropriate judge alone comparators.
 I found the remaining cases cited by the appellant unhelpful for comparison purposes.
 The respondent cited only appellate review (not judge alone) cases in its factum: Moskaleva; Alden v. Spooner, 2002 BCCA 592, leave to appeal ref’d  S.C.C.A No. 535; and Bransford v. Yilmazcan, 2010 BCCA 271.
 To assist me in determining if the jury’s award of almost three times the upper end of the judge alone range requires appellate intervention, I have reviewed the appellate cases cited by the respondent. In Moskaleva, a 53-year-old plaintiff suffered a mild traumatic brain injury, headaches, fatigue, and depression. There was medical evidence that the injury caused permanent cognitive deficits. The plaintiff and her husband testified that the effects of her brain injury on her cognitive abilities precluded her from pursuing her vocation as a software designer. The jury awarded her $245,000 for non-pecuniary damages. This Court did not reduce the award on appeal.
 In Alden, a 17-year-old student was injured in four accidents. Prior to the accidents she was a good student, a competitive runner, and had hoped to pursue a career in sports medicine. The jury awarded her $200,000 for non-pecuniary damages. As a result of the accidents she developed chronic pain syndrome or fibromyalgia and she became depressed. Rowles J.A. noted that the “combined effect [of the four accidents] was physically and emotionally devastating to the plaintiff” (at para. 29). The jury award, though acknowledged to be high, was not reduced on appeal.
 In Bransford, a 26-year-old woman was injured in a motor vehicle accident. Both before and after the motor vehicle accident she worked as a flight attendant but her neck pain eventually led to her leaving a succession of jobs. By trial, she was unable to work and was on disability benefits. She was diagnosed with thoracic outlet syndrome. She underwent surgery but it did not alleviate her pain and disability. The jury awarded her $385,000 for non-pecuniary damages. The trial judge reduced the award to the upper limit of $327,000. On appeal this Court, per Hall J.A., found that the award was “sufficiently anomalous that it [called] for appellate intervention” and reduced the award to $225,000 (at para. 22).
 I also found the case Knauf v. Chao, 2009 BCCA 605, to be a helpful appellate-level comparator. In Knauf, the jury awarded $235,000 in non-pecuniary damages for a permanent soft-tissue injury. The plaintiff was age 35 at the time of the accident. Her injuries forced her to quit her part-time job as a server and to curtail her recreational activities. The court considered the plaintiff’s injuries to be significantly less serious than those suffered by the plaintiff in Moskaleva (paras. 48-49). Having found that the award was wholly disproportionate, the court reduced it to $135,000, noting that improper comments made by plaintiff’s counsel may have influenced the jury (paras. 57-58).
 Here, Mr. Taraviras testified that his life had, in almost all respects, been affected by this accident. He could no longer work in the same robust way he had worked previously. His renovation and property acquisition business was limited by his inability to do the heavy maintenance and renovation work. He could no longer participate in his previous active sporting life. His personal relationships were affected by his short temper and more sedentary lifestyle. He complained of constant pain in his leg and back. He could no longer enjoy his employment. Taking the plaintiff’s case at its most favourable, I would conclude that Mr. Taraviras’ injuries in this accident had a devastating effect on his previously active and energetic life. I must assume that the jury did not accept the proposition advanced by the defendants that his pre and post-accident injuries were causative.
 Even accepting Mr. Taraviras’ case as I have, I am of the view the award for non-pecuniary damages does require appellate intervention. This is one of those awards that is so out of all proportion to the circumstances of the case that it would shock the conscience of the court to leave it undisturbed. It is wholly out of proportion to the injuries suffered by Mr. Taraviras and must be set aside. In granting considerable deference to the jury and using the judge alone and appellate cases as some guidance, I would reduce the award from $300,000 to $200,000.
posted by Collette Parsons at 10:23 AM