The British Columbia top court, Court of Appeal, in this Vancouver filed car accident personal injury claim(Sobolik v. Waters) decided that the trial judge made an error when explaining the law regarding loss of earning capacity to the jury. This personal injury claimant, after winning a jury award of over $452,000.00, is now required to start her case all over again.
The Court of Appeal found that, when the judge reached a part of her charge, specific to the claim for future loss of earning capacity, she incorrectly instructed the jury that:
… Ms. Sobolik is entitled to damages for what the law refers to as a loss of a capital asset, namely her future loss of earning capacity…. But going not to the past loss but going to the loss of earning capacity, we’re talking about not her loss of earnings, but her impairment and loss of earnings which entitles her to damages because a capital asset has been lost. Even if Ms. Sobolik is able to earn as much as she could have earned, even if she hadn’t been injured in the accident, the law entitles her to compensation…She is entitled to it because for the rest of her comparatively young life, some work or occupations will be closed to her, and it is impossible to say that over her working life the impairment will not harm her income earning capacity.
Our top court went on to point out that even in the written portion of the charge to the jury the trial judge repeated the erroneous part of her instruction as follows:
It is not her loss of earnings, but Ms. Sobolik’s impairment and loss of earning capacity which entitles her to damages because a capital asset has been lost. Even if Ms. Sobolik is able to earn as much as she could have earned, even if she hadn’t been injured in the accident, the law entitles her to compensation. She is entitled to it because for the rest of her comparatively young life, some work or occupations will be closed to her, and it is impossible to say that over her working life the impairment will not harm her income earning capacity.
The trial judge was wrong to have repeatedly made use of the phrase “entitled to …” when talking to the jury. In this car accident case the trial judge was also wrong by inappropriately using the “entitled to …” language in her written instructions to the jury and also by using it out of context on the facts of the case.
The top court reaffirmed the important and simple two part test in Earnshaw v. Despins(1990), 45 B.C.L.R. (2d) 380, p. 399, (C.A.), in which the court held that a claim for future loss of earning capacity calls for the consideration of the following:
1. Has the plaintiff’s earning capacity been impaired to any degree by [her] injuries?
2. If so, what amount in light of all of the evidence should be awarded for that impairment?
The trial judge was wrong to have not asked the jury to consider whether the claimant’s capacity was impaired and the judge gave the impression that had already been decided. The Court of appeal concluded that the trial was unfair to the at fault driver and the errors made by the trial judge amounted to a miscarriage of justice. the interests of justice therefore required that there be a new trial.
Interestingly at the end of this decision our top court added some obiter dicta advice to trial judges:
“We wish to add that in this case the trial judge reduced parts of her charge to writing, which she handed to the jury. The written charge did not conflict with what she said orally but was a condensed version of what she had said. In our opinion, trial judges should be very cautious in providing only a portion of their oral charge in written form or one that does not closely follow the oral charge. Indeed, juries are often cautioned that they must consider the judge’s instructions as a whole and not single out some parts and ignore others. Providing only a portion of the charge to the jury in writing invites the jurors to focus upon only the portions that they receive in writing. In saying this we recognize that it is the practise of some trial judges to omit evidence summaries from the written portion of their charge, a practise which to us does not seem inappropriate.”
Posted by Mr. Renn A. Holness
Issue: If the trial judge has made a mistake is it a miscarriage of justice that the innocent injury claimant must go through a whole new trial?