In the case of SMAGH V. BUMBRAH, 2011 BCCA 281 (“SMAGH”), the Court considered an appeal by the Plaintiff of a trial decision in which a Supreme Court jury awarded the Plaintiff $2,000 for non-pecuniary damages and nothing for past loss of income, loss of future earning capacity, or cost of future care. The collision which gave rise to the proceedings was a rear-end collision that resulted in the Plaintiff claiming neck and back injuries.
In SMAGH, the Plaintiff argued that the trial judge erred in law in three ways (at para. 4):
[1.] BY FAILING TO DIRECT A MISTRIAL AND ORDER THAT THE TRIAL PROCEED IN THE ABSENCE OF THE JURY;
[2.] BY PERMITTING CLINICAL RECORDS TO GO TO THE JURY, IN THE ABSENCE OF VIVA VOCE TESTIMONY FROM THE MAKER OF THE DOCUMENTS AND IN THE ABSENCE OF SUFFICIENT DIRECTION TO THE JURY AFTER THE RECORDS WERE PUT TO THE JURY;
[3.] BY ALLOWING COUNSEL FOR THE RESPONDENT (DEFENDANT) TO MAKE INAPPROPRIATE STATEMENTS BEFORE THE JURY IN HIS CLOSING ARGUMENT, WITHOUT DIRECTION OR CAUTION TO THE JURY.
With respect to the first ground of appeal, the Plaintiff objected to the fact that during cross-examination of the Plaintiff’s general practitioner, counsel for the Defendant put clinical records to the witness that were from another doctor who had treated the Plaintiff before the collision. The Plaintiff objected to this aspect of the cross-examination because the clinical records referred to “chronic neck pain” and “myofascial syndrome” and constituted inadmissible hearsay and opinion evidence. At trial, the judge held that although the evidence was inadmissible, the Plaintiff had not met the heavy burden imposed on an applicant asking that the jury be dismissed and the trial proceed with judge alone. The trial judge held that the relevant test was whether the “impugned remarks are of such a nature that nothing the trial judge could say to the jury would dispel the remarks from their minds such that the applicant could receive a fair trial” (at para. 6). The trial judge held that a strict warning to the jury was sufficient to ensure that the inadmissible evidence was not considered. The Court of Appeal upheld the trial judge’s decision and rejected the Plaintiff’s submissions on the first ground of appeal as it found that the Plaintiff had not met the burden of showing that “the judge erred in principle or was clearly wrong in deciding that a warning to the jury was sufficient to prevent prejudice” (at para. 10).
The second ground of appeal in SMAGH was whether the trial judge erred in allowing the Plaintiff’s redacted pre-accident clinical records to be admitted without explaining them more clearly to the jury in light of their “confusing” and partially “illegible” nature. However, the Court of Appeal rejected this ground of appeal because the records were initially admitted into evidence by consent and without the Plaintiff requesting any limits on the way the records could be used at trial.
Finally, all parties conceded that the following statement to the jury by defence counsel was inappropriate in that it tended to suggest that the defence counsel was somehow working alongside the court and jury in testing the validity of the Plaintiff’s case (at para. 15):
I’M HERE — I START OFF NORMALLY LIKE THIS, I’M ON BEHALF OF THE DEFENDANT MR. BUMBRAH. YOU KNOW THAT. I’M HERE WITH MY COLLEAGUE AND WE ARE DEFENDING THE CASE. WE ARE CHARGING THE PLAINTIFF’S EVIDENCE. THAT’S OUR ROLE. THAT’S OUR JOB. WE’RE DOING IT ON YOUR BEHALF AND ON HIS LORDSHIP’S BEHALF AND ON BEHALF, JUST AS MY LEARNED FRIENDS ON BEHALF OF THE PLAINTIFF ARE TRYING TO PRESENT EVIDENCE TO YOU. THAT’S OUR JOB. THAT’S THEIR JOB.
However, the Court of Appeal agreed with the trial judge’s opinion that the jury was aware of the respective roles of the parties, and rejected the appropriateness of comments made by defence counsel at trial as a ground of appeal.
Ultimately, the Court in SMAGH upheld the trial decision, dismissing all three grounds of appeal.
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