The below charge was delivered by a Judge of the Ontario Superior Court of Justice in the fall of 2016, in a case arising from a motor vehicle accident. To protect the privacy of the parties, identifying information has been redacted and all names and dates changed. Any similarities to people living or dead, companies or television characters is purely coincidental.
JOHN DOE AND JANE DOE
1. Members of the Jury. You have now heard all the evidence in this case and the submissions made by Mr. Superlawyer, counsel for the plaintiff and Mr. Twistit, counsel for the defendants. Before you retire to consider your verdict, I will instruct you on the law and review the evidence for you. My instructions will be divided into several parts.
(1) I will tell you how you should apply these instructions and the difference between our respective duties;
(2) I will discuss the questions you will be asked to answer after you retire to deliberate;
(3) I will mention certain general rules of evidence relating to the testimony you heard;
(4) I will review some of the more important evidence that you heard from the witnesses;
(5) I will go over some of the special rules of evidence that arise out of the testimony you heard;
(6) I will discuss the law relating to the assessment of damages;
(7) I will end these instructions with a summary of the positions of the plaintiff and the defendant, how you should answer the questions, how you should go about your deliberations, and what you should do if you need any additional help concerning the evidence or the law.
WRITTEN COPY OF CHARGE FOR THE JURY
2. To assist you in your deliberations, I have prepared a written copy of my charge. In a moment, I will ask the registrar to hand it out. I will then read it to you and you can follow along. During the reading, I may discover some minor errors in the charge that I did not catch when I checked it over. The official charge you must follow will be the one I give to you orally and not the one that is written, should there be any differences between them.
ORDER OF INSTRUCTIONS
3. While I have set out the general way in which the instructions will be given, you should keep in mind that this arrangement has nothing to do with the relative importance of what I tell you.
4. The same thing applies if I repeat an instruction or tell it to you again in a different way. The repetition is to help you better understand the concept—not to emphasize it in comparison to the other parts of the charge.
INSTRUCTIONS TO BE CONSIDERED AS A WHOLE
5. When you retire to deliberate, you must consider my instructions as a whole. Do not single out some parts and ignore others.
6. You are probably wondering how you will perform your duties once I complete my charge. All you need to do is agree to the answers to a set of questions. You do not need to be unanimous – but you need at least 5 out of 6 of you to agree to each answer provided. The same 5 out of 6 people do not need to agree to the answer to each question but no less than 5 out of 6 must agree to every answer provided. So you may better understand how this works, I will now show you the form of questions you will be asked to answer.
I will deal with the questions in more detail at the end of the charge. At this point you can see that you will be asked to answer the following questions.
1. Did the Plaintiff sustain any injuries in the motor vehicle accident of January 1, 2011?
2. If the answer to Question 1 is Yes, at what amount, if any, do you assess the damages of the Plaintiff caused by the injuries sustained in the motor vehicle accident of January 1, 2011?
a) General Damages – Pain and Suffering & Loss of Enjoyment of Life
b) Past Loss of Income – From January 1, 2011 to date
c) Future Loss of Income – From the date of Trial to January 01, 2020 & Pension Reduction from January 01, 2020 to to January 01, 2032.
d) Past Medical & Rehabilitation Expenses to date
e) Future Medical & Rehabilitation Expenses – From the date of Trial to January 01, 2032
DIVISION OF RESPONSIBILITY
7. It is now my responsibility to instruct you on the law. You must accept my instructions in this respect. You should not deal with this case on the basis of what you think the law is or what you think it should be. You must disregard anything either counsel said to you about the law if it conflicts with what I tell you.
EXPLANATION OF DIVISION OF RESPONSIBILITY
8. There is a good reason for this procedure. If I should err in directing you on the law, I can always be corrected by the Court of Appeal because what I say is recorded. It will be available in the form of a transcript if either side decides to appeal. On the other hand, your deliberations are conducted in secret. There is no record of them. If you should misapply the law, the party who is wronged has no transcript upon which he or she can rely if the case should go to appeal.
JURY SOLE JUDGE OF THE FACTS
9. You are the sole judges of the evidence and the facts that arise from the evidence. Your findings of fact must be based only on the evidence you have heard in this court.
DIFFERENCE BETWEEN EVIDENCE AND FACT
10. You may be troubled by the difference between evidence and fact. Evidence includes the body of testimony we heard and the exhibits that were filed. Facts are the things that you choose to believe from the evidence. From the facts that you find, you may draw inferences with respect to other facts, and you may rely on these inferences in determining whether the plaintiff succeeds or fails.
WARNING AGAINST BASING VERDICT ON SYMPATHY OR ANTIPATHY
11. In reaching your decision, you should not base your verdict on sympathy for the plaintiff or the defendant or any witness. Nor should it be based on any feelings for or against the plaintiff or the defendant or any witness.
JURORS’ MEMORY OF THE EVIDENCE MUST PREVAIL
12. It is your memory of the evidence that counts. The evidence you heard in this trial is generally not typed up into the form of a transcript unless the case is appealed after the end of the trial. I will review the evidence with you from my notes taken during the course of the trial. These notes may not be completely accurate because I am not trained as a shorthand reporter. You must therefore rely on your own memory or notes of the evidence rather than mine. The same caution applies to anything that Mr. Superlawyer and Mr. Twistit said about the evidence.
INDEPENDENCE OF JUDGMENT
13. Your duty is to weigh the evidence and come to a conclusion as to what you believe and what you do not believe. You should exercise the same independence of judgment in weighing my comments about the evidence as you do in weighing the testimony of witnesses and the submissions of counsel.
14. I will now instruct you on the rules you must use when you consider the evidence in this case. First I will discuss the general rules that apply in every civil case. Then I will tell you about some specific rules that apply in this case because of the nature of the evidence.
JUDGE MAY COMMENT ON THE EVIDENCE
15. Under our system of law, a judge has the right to comment on the evidence of witnesses, their credibility, and the inferences to be drawn from the evidence. If I do so, I want to emphasize again that you are not bound to follow my opinions as far as the evidence is concerned. The evidence may have left a far different impression on my mind than it did on yours. It is your duty to place your own interpretation on the evidence.
JURY THE JUDGE OF THE FACTS
16. If your views vary from mine, or if you disagree with my comments about the evidence, you must disregard my views or opinions on the evidence and give effect to your own. As I said, you are the sole judges of the evidence.
USE OF JUROR NOTES DURING DELIBERATIONS
17. I told you that you could take notes to help you remember what any witness said in testifying here. Some of you have done so. You may take your notes with you to the jury room for your use during your deliberations.
18. Your notes are not evidence, any more than the notes that I make or the lawyers make are evidence. The only purpose for which you may use your notes during your deliberations is to help you remember what a witness said or showed, for example, on an exhibit.
19. It is also important to remember that the notes are those of the note-taker, not someone else. They may or may not coincide with other jurors’ memories of the evidence. The memory and judgment of each one of you is important in deciding this case. Do not simply defer to the person who is or seems to be the best note-taker. Notes don’t make decisions. Jurors do.
PRINCIPLES OF EVIDENCE
20. I will now instruct you on the rules you must use when you consider the evidence in this case.
21. As I told you earlier, there are some things that are not evidence. To determine the facts, you must only consider the evidence that you saw and heard in the courtroom, the things that were made exhibits and the facts that the parties agreed on. Consider all the evidence in reaching your decision.
22. I turn to what does form part of the evidence.
23. Twenty-one exhibits have been presented during this trial, including Exhibit One which is a two volume book containing medical records and other documents consisting of 50 tabs of documents. The exhibits go with you to your jury room, along with an exhibit list. The exhibits are part of the evidence. You may, but do not have to, examine the exhibits in your jury room. Whether you do so, how, and how much, is up to you. Consider the exhibits along with the rest of the evidence and in exactly the same way. You may rely on the exhibits as much or as little as you wish in arriving at your verdict.
24. The evidence also includes the testimony of witnesses who gave oral testimony. Some of those witnesses were “fact witnesses”. In other words, they were people who had some involvement in matters relating to the plaintiff, Shelly Cooper, such as her daughters Sarah Cooper and Kelly Cooper and her former colleagues, Betsy West and Karla Stover, who worked as teachers where Shelly was principal – both before and after the accident. These witnesses provided evidence about Shelly from the viewpoint of Shelly’s activities, her personality, her hobbies, habits and general demeanor – both before and following the January 1, 2011 accident. You also heard extensive evidence from Shelly herself and some limited evidence from the defendant John Doe.
25. Another kind of fact witness is a treating professional. Dr. Best, Dr. Charles and Dr. Dakota testified.
26. Dr. Best is Shelly’s longtime family physician who has treated her since at least 2000. Dr. Best provided evidence about Shelly’s general health and prescribed treatments – both before and following the January 1, 2011 accident. He also provided some evidence concerning her reasons for retirement.
27. Dr. Dakota is a rehabilitation medicine specialist who examined, assessed and treated Shelly following the January 1, 2011 accident. Dr. Dakota provided evidence regarding Shelly’s symptoms, both objective and subjective, his diagnosis, the treatments performed by him and the results of such treatments and his proposal for ongoing treatments. He also provided some evidence concerning her reasons for retirement.
28. Dr. Charles is a chiropractor who assessed Shelly following the January 1, 2011 accident and who prescribed and performed treatment for her at his clinic.
29. Each of Dr. Best, Dr. Dakota and Dr. Charles were permitted to testify about Shelly’s reported complaints and their observations and how they treated her, as they recalled, and as recorded in their clinical notes and records and in some cases by independent recollection from memory.
30. Some of these “fact witnesses” testified about statements that Shelly made to them. Any statements made by a plaintiff to a fact witness are hearsay evidence and cannot on their own be accepted as being true even though you may believe the statements were made. To the extent that other evidence (such as objective evidence) proves the facts in those statements to be true, and you accept those statements as true, then you may accept such statements as being true. The other evidence that can prove a fact in a statement made by Shelly includes Shelly’s own testimony in court. It is up to you to decide, after considering all of the evidence, what you believe to be true or not. The principle also applies to the evidence of the expert witness regarding statements made to the expert by Shelly. The principle also applies to statements attributed to Shelly in the clinical notes and records that were filed as exhibits in the case.
31. There are times when knowledge of a technical subject may help jurors decide a case. Someone who is qualified in that subject, by education, training and/or experience, may state their opinions about it. They may also give reasons for their opinion. Those persons are commonly referred to as “expert witnesses” qualified to give opinion evidence.
32. That is why there was evidence about the qualifications of the non-treating professional Dr. Joseph Efraim. Once qualified, Dr. Efraim was permitted to provide expert testimony on topics consistent with my ruling about the area of expertise.
33. You heard expert testimony from Dr. Efraim. He is a specialist in rehabilitation medicine, soft tissue injury and chronic pain called by Shelly. Dr. Efraim was qualified to give opinion evidence in the area of rehabilitation medicine, soft tissue injury, and chronic pain.
34. You also heard evidence from Dr. Judy Franks. Dr. Franks was called by the defense and is a family physician who examined Shelly in the context of an application for insurance benefits in June of 2012. Dr. Franks, was allowed to provide her opinion about her examination of Shelly in 2012, however, Dr. Franks was not qualified as an expert. Further, despite the fact that she provided an opinion as she is not a Rule 53 (independent court expert) her evidence is considered “fact” evidence.
35. The evidence of a witness, whether a “fact” witness, including a treating professional, or an expert witness consists of the answers given to the questions the lawyer asked. The questions themselves are not evidence unless the witness adopted the question asked or proposition suggested to them.
36. I am going to deal with the evidence of these witnesses again later in this charge.
HOW TO WEIGH TESTIMONY
37. In deciding what the facts are in this case, you will be the sole judges of the truthfulness and reliability of the weight to be given to the testimony of each of them.
38. Truthfulness means how credible or believable the witness is. If anyone during this trial expressed a personal view that another person was not telling the truth you are to disregard that view. Reliability means the accuracy of the testimony. Weight means its significance or importance.
39. In weighing the evidence that witnesses have given, you are not obliged to decide an issue in conformity with the majority of the witnesses. You can, if you see fit, believe one witness against many. The test is not in the relative number of witnesses, but in the relative force or strength of the witnesses. It will be up to you to decide how much or how little you will believe and rely upon the testimony of any witness. You may believe some, none or all of what a witness says.
40. Discrepancies in a witness’ testimony, or between his or her testimony and that of others, do not necessarily mean that the witness should be discredited. Failure of recollection is a common experience and innocent mis-recollection is not uncommon. People describe things differently and that does not necessarily mean that a witness has lied and should be discredited. Discrepancies on trivial detail may be unimportant, but a falsehood is always serious.
41. When you go to your jury room to consider the case, use the same common sense that you use every day in deciding whether people know what they are talking about and whether they are telling the truth. There is no magic formula for deciding how much or how little to believe of a witness’ testimony or how much to rely on it in deciding the case. But here are a few questions you might keep in mind during your discussions.
42. What was the witness’ manner when he or she testified? How did the witness appear to you? Do not jump to conclusions, however, based entirely on how a witness has testified. Looks can be deceiving. Giving evidence in a trial is not a common experience for many witnesses. People react and appear differently. Witnesses come from different backgrounds. They have different abilities, values and life experiences. There are simply too many variables to make the manner in which a witness testified the only or the most important factor in your decision.
43. Did the witness have a poor or faulty memory? Consider the extent of the person’s opportunity to observe the matter he or she testified about. What opportunities of observation did the person have? What are the person’s powers of perception? You know that some people are very observant while others are not.
44. Consider whether the witness has any interest in the outcome of the litigation? We all know that humanity is prone to help itself, and the fact that a witness is interested in the results of the litigation, may, and often does, cause a person to unconsciously shade his or her evidence to lend support to his or her cause.
45. Consider whether the witness exhibited any partisanship, any undue leanings towards the side which called him or her as a witness? Is the person a relative, friend, or an associate of any of the parties in this case, and if so, has this created a bias or prejudice in the person’s mind and consequently affected the value of the person’s testimony?
46. Consider the probability or improbability of a witness’ story and weigh it accordingly. That is a common sense test. Did the evidence make sense? Was it reasonable? Was it probable?
47. Consider whether the witness showed any tendency to exaggerate in his or her testimony?
48. Was the testimony of the witness contradicted by the evidence of another witness, or witnesses whom you consider more trustworthy or reliable?
49. Does the fact that the witness has previously said or written something that is inconsistent with part of his or her testimony at trial affect the reliability of his or her evidence?
50. These are only some of the factors that you might keep in mind when you go to your jury room to make your decision. These factors might help you decide how much or little you will believe of and rely upon a witness’ evidence. You may consider other factors as well.
51. In assessing honesty, and reliability take into account the exhibits that have been filed. Decide how much weight you give them, as well as the testimony, to help you decide this case.
52. After considering all of these matters and anything else that you believe is important, you will reach a conclusion on the credibility and reliability of each witness and be in a position to determine the weight to be given to –or the extent to which you will rely upon – their evidence.
53. In determining the credit to be given to the evidence of a witness, you should use your common sense and your knowledge of human nature.
OBJECTIVE AND SUBJECTIVE SYMPTOMS
54. You have heard the phrases “objective symptoms” and “subjective symptoms” used during the trial and I will use them in this charge. This is a convenient time for me to say something about the difference and the significance in this case.
55. Objective symptoms are those revealed through the observations, examinations, tests and treatments performed by a health care practitioner or through the observations of others. An obvious example is where the end of an arm bone is protruding through the skin. That is an extreme example of an objective symptom of a broken arm.
56. Subjective symptoms are those revealed through statements made by a patient to a health care practitioner or others. An obvious and straightforward example is a person’s simple statement that he or she has a head ache.
57. A physician’s opinion as to the condition of a patient may be based entirely upon objective symptoms, or the opinion may be based entirely upon subjective symptoms, or it may be based in part upon the objective symptoms and in part upon subjective symptoms.
58. Where, as here, there exists both objective evidence of the plaintiff’s injuries which is mixed with the plaintiff’s subjective complaints to physicians, others and ultimately to the court, your view of the physician’s credibility who testified that there was objective evidence is important as is your view of the plaintiff’s credibility as she provided subjective evidence. The credibility of the witnesses both specifically and generally in this case is critical to your assessment of Shelly Cooper’s case.
59. During the trial we heard from one qualified expert, Dr. Joseph Efraim, who is an expert in rehabilitative medicine and chronic pain. I want to give you some general guidance as to how you deal with expert testimony. Normally, a witness is not entitled to give opinion evidence in a trial. However, a person who has special qualifications and who can assist you in coming to your decision is permitted to give such evidence to help you arrive at a just result. As with other witnesses, you have the duty of determining what weight should be given to the testimony of the experts.
60. The opinions of experts should be treated in the same fashion as the testimony of any other witnesses. Just because an expert has given an opinion does not require you to accept it. It is up to you to decide how much weight you will give to an expert opinion. In determining the weight you will take into account the expert’s skill, experience and knowledge and whether it relates to the particular matter in issue, the expert’s familiarity with the facts of the case and the expert’s credibility—did he or she strike you as being honest, impartial and fair or was he or she unwilling to consider other opinions and seemed more of an advocate?
61. Experts usually form their opinions by applying their training, education and experience to a number of facts that the expert assumes or relies on as the basis for his or her analysis. Do not ignore the expert’s education, training, experience and credentials but do not be intimidated or blinded by them either. Even though a witness has very high qualifications, you are not required to accept an opinion if in your judgment it is unsound or unreliable. What an expert assumes or relies on as a fact for the purpose of offering his or her opinion may be the same as what you find as facts from the evidence introduced in this case or there may be differences.
62. Remember that an expert witness can only give opinion evidence in the area in which they were qualified. That opinion was based on a number of assumptions. You are obligated to consider whether those assumptions are correct. In doing this you must consider the totality of the evidence in this case. All of the experts had reviewed medical records and other information. Questions were asked of them based on that review. Did their summary of the facts accord with your view of the evidence?
63. To the extent that the facts you find are different from the facts assumed or relied upon by the expert in reaching their conclusion, you may consider the expert’s opinion less helpful to you in deciding this case. How much or little you believe of or rely upon an expert’s opinion is entirely up to you.
64. In the present case there was only one expert called, Dr. Efraim who was called for Shelly. You need to consider the evidence together with the other evidence that relates to an issue in deciding whether and to what extent to accept the evidence of any expert.
65. You may not find it easy to decide how much weight you should give to the opinion of an expert witness. You might want to apply a three-step process as follows:
(i) Qualifications and Impartiality: At this first stage, consider the qualifications of the expert witness. Examine the witnesses training and experience, and the level of their competence in the field in which they were qualified to give an opinion. Consider also whether the expert was impartial, or whether he appeared unreasonably to favor the party who called them as a witness. The more impartial the expert, you may conclude, the more reliable the expert’s evidence.
(ii) Assessment of Evidentiary Basis for the Opinion: Here, you should examine the facts and assumptions (if any) upon which the expert relied in forming his or her opinion. Were the expert witness’ assumptions based upon facts which have been proven to be true? You must consider the expert’s evidence carefully to determine what the expert used as the foundation for his or her opinion, and whether you have accepted the evidence to support the foundation used. It is entirely up to you to decide how much weight to give to an expert’s opinion.
(iii) Examine the Whole of the Opinion: You should examine the opinion itself. You should examine the process used by the expert in arriving at his or her opinion. This of course is where the special skill and knowledge of the expert comes in. If you are satisfied with the qualifications and impartiality of the expert, and find that the evidence supports the foundation or assumptions used by the expert, you should not reject the expert’s opinion without good reason. If, however, you are of the view, on a consideration of all of the evidence in the case, that the opinion of the expert should not be accepted by you, you are at liberty to reject it.
66. I want to expand on one area I mentioned. In assessing the medical expert you should consider the information the medical experts had before them. Some opinions were based in large part on subjective evidence. You have heard the testimony of the medical expert in reference to the nature of the injuries the plaintiffs complained about. As with fact witnesses, statements made by a plaintiff to a medical expert are hearsay evidence. In many cases, our law excludes hearsay evidence. However, various statements a plaintiff made were admitted into evidence showing the basis for part or all of the medical expert’s opinions.
67. To the extent that other evidence for example, a plaintiff’s own testimony in court, or the documents filed as exhibits, proves that a plaintiff made those statements, and you accept those statements as true, then the medical expert’s opinions carry more weight. But if those statements were not confirmed in court by the plaintiff, a medical expert’s opinion based on them may have little weight. Similarly, if you do not accept that those statements made by a plaintiff were true, or if you find they were exaggerated, then the opinion of the medical expert which relied on those statements will have less weight or no weight.
68. To the extent that any medical expert’s opinion is based upon subjective symptoms described to him or her or by a plaintiff, you have to consider the accuracy and truthfulness of the patient’s statement in determining the weight to be given to that medical expert’s opinion.
69. It may have been implicit or even explicit in what a health care provider or assessor said in his or her evidence that he or she believed or did not believe what the patient was telling them. Here is a word of warning. You should not take into consideration, in assessing the credibility of a plaintiff, anyone’s opinion or feelings – whether an expert or not – as to the truthfulness in general of a plaintiff. However, you are entitled to consider the health care provider’s or assessor’s opinion as to the validity of the patient’s conditions and symptoms, including an opinion based in whole or in part on standard, approved, validity testing.
FAILURE TO CALL WITNESS
70. I want to say something about a lack of evidence. You must not speculate as to what might be said by a person who was not called as a witness. We are aware that Dr. Herman was unable to attend the trial due to illness. We are not aware of what his evidence would have been at trial following his examination, cross-examination and reexamination. Further, there is no evidence as to why other people were not called as witnesses. Focus on what evidence is here.
AN OUTLINE OF THE EVIDENCE IN THIS CASE
71. I am now going to mention some of the more important evidence you heard during this trial in order that it will be fresh in your minds when you retire to consider your verdict.
72. Keep in mind that what I am relating to you comes from my own typed notes, and so there may be some inaccuracies. As I told you before, it is your memory of the evidence that counts and not the memory of counsel or my recollection of what the witnesses said. As well, I may neglect to mention some portion of the evidence you consider important. Again, it is your view of the evidence that counts. At the end of the charge, I will tell you how you may have parts of the evidence read back to you if you have difficulty recalling an important piece of evidence.
REVIEW OF EVIDENCE
73. I don’t intend to discuss everything a witness said, but I will review the testimony of all the witnesses. I will relate to you what I consider to be the evidence of the witnesses and the more significant aspects of their testimony:
(1) The first witness was Shelly Cooper. You will recall that Shelly testified that she was involved in an automobile accident on January 1, 2011 when she was rear ended by John Doe.
Shelly was born on February 1, 1960. She is currently 56 years old and was 51 years old at the date of the accident.
Shelly has been married for 35 years and has four children and two grandchildren. Her mother is alive and resides in a nursing home and she is the primary caregiver for her mother.
At the date of the accident Shelly was the principal of a Public School where she had worked since September 1, 2001. (See Exhibit 5)
Shelly Cooper testified that her position as principal included an array of tasks – curriculum, leadership, discipline, student progress, planning and tracking fundraisers, special events, board level meetings, attending meetings and community events, attending workshops, co-chairing leadership, personal development coaching for teachers. She testified that she was always active, she mentored teachers and parents, was involved in meeting and greeting, spent her lunch in the gym supervising students and spent after school hours involved in the students extra-curricular events.
Shelly testified that her hours were long but she was always keen and anxious to go to school. Prior to the accident she arrived at school between 7:30 – 8 am and left prior after 6 pm. Shelly testified that she was always on her feet all the time with the kids.
As to her stress level prior to accident – Shelly testified that being a principal of an elementary school was her dream job and she worked very hard to obtain her position. She stated that she had some issues here and there but nothing serious.
Shelly testified that the manner in which she performed her position as principal changed dramatically after the January 1, 2011 accident as did her stress level. Shelly testified that she was not able to participate in physical activities, she no longer played basketball or jumped rope with the kids, she no longer danced at the school dance – she stopped participating in recess activities. She stated that her pain restricted her ability to do her job to the same level and she was sitting for long hours. She said this change caused huge stress levels. Previous to the accident she enjoyed every minute of her job – she was loved and loved them back. After the accident however everything changed for her.
Shelly testified that she had always intended on working for as long as possible and at least until age 65. However, she testified that due to radiating pain caused by the injuries suffered in the January 1, 2011 accident that she was required to retire early effective December 31, 2015. (See Exhibit 1)
Prior to the January 1, 2011 accident Shelly testified that she was very healthy and suffered no complaints except the usual aches and pains and other minor health issues. Prior to the January 1, 2011 accident, Shelly stated that she had regularly attended the gym for 25 years and suffered no symptoms that would hinder her daily routine at home or at school. At home – she did the household work including cleaning, cooking and gardening. She visited her mother regularly, she visited and played with her grandkids, she cooked for her family and her school. She was socially active and attended and threw parties. She travelled extensively – and would go sightseeing in many places.
Previous Car Accidents
Shelly testified that she had been in three previous car accidents and suffered the following injuries as a result of those accidents:
(i) 1985: sustained pain in neck and shoulders and scar tissue – she underwent extensive physiotherapy and massage therapy for over 3 years. She also had Botox injections (3 or 4 treatments). She recovered from her symptoms and was fine continued to thrive in her career;
(ii) 1995: minor injuries – underwent physio for 6 months and stayed active after – essentially she was recovered from this; and
(iii) 2005: minor accident described as a “tap” – she was the person who tapped the car ahead of her – the accident was not reported and she suffered no injury.
January 1, 2011 Car Accident
The accident which forms the subject matter of this lawsuit occurred on January 1, 2011.
Shelly testified as follows: she was coming home from school on the 401 travelling westbound towards the Allan Road exit. The accident occurred around 5 p.m. She was about to get into exit lane and felt a big jolt. She was in a panic and anxious to go home – she felt confusion – after speaking to the police approximately one hour later she drove home.
Medical Symptoms and Treatment
After returning home Shelly stated that she pretty soon felt sharp pain in her shoulder and neck and went to the walk in clinic around 7 p.m. at the After Hours Medical Clinic. Shelly saw Dr. Lesley on January 1, 2011. (See Exhibit 1)
Shelly said her head and neck pain were constant on a daily basis and the pain did not get better but the level of the pain varied depending on time of day and activity – sometimes excruciating sometimes pressure but constant. Shelly’s pain and headaches continued– sometimes radiated to head and should blades. Shelly had movement issues in turning to right side and began using other side – then suffered compensatory pain.
Shelly testified that she had difficulty lifting things – pushing and pulling things heavy things – reaching up on shelves – can’t go higher up – experiences pain – during lifting and more so if she has done something – the issue has gotten worse despite treatment. At the date of the trial she testified that she is in pain.
Shelly testified that she has suffered psychological difficulties – she said she has a driving phobia – she is afraid of being hit from behind. She still has a fear of driving or even as being a passenger. Shelly testified that her family had a difficult time accepting her pain. They have had long discussions and over time became empathetic.
Shelly testified that her memory was affected. She stated that her headaches impacted her a great deal. Her temperament has changed – she is easily irritated – this has caused issues with her relationship with her husband and children.
As for Shelly’s treatment, she sought and obtained the following treatment (See Exhibit 1);
i. Dr. Lesley who saw her at the walk in clinic on January 1, 2011 and prescribed Tylenol 3 for pain;
ii. Dr. Best her family physician who she attended regularly and he advises her to stay active, exercise, walk, rest and refers her to specialists including Dr. Walker and Dr. Langer;
iii. Dr. Hibbert who performed physiotherapy – see Exhibit 1, Physio Health commencing in mid May 2011 and continuing to June 2012. The treatment was helpful but she stated that she stopped because it was costly and her insurance did not pay much – she had to pay Multi-care personally. (See invoice at Exhibit 1,for $1,200.00);
iv. Dr. Walker is a neurologist who was referred for ongoing headaches and numbness on right side. She saw him in November of 2012. Dr. Walker’s notes including the stated reason for referral are found at Exhibit 1, (sleeping difficulty – PTSD – forgetful – anxiety – depression – headaches were constant – whiplash injury non-restorative sleep, PTSD, cognitive issues, headaches). Dr. Walker referred the plaintiff to Dr. Dakota;
v. Dr. J. Langer saw the plaintiff in November 2012. Dr. Langer’s report is found at Exhibit 1.
vi. Dr. Dakota who testified and provided letters of this findings to Dr. Best which are filed at Ex 1. Dr. Dakota saw Shelly regarding ongoing headaches, numbness, ongoing pain especially on right side. Dr. Dakota specializes in Botox injections and advised plaintiff to get them every 3 – 6 weeks. She had 4 treatments of Botox injections with fluid injected in neck shoulders, temples, head – quite painful – it helped – she stopped after 4 treatments as it was very expensive and she was paying out of own pocket. (See Exhibit 1, for invoices for the medicine (Botox injections) of $900.00 each treatment. (See Exhibit 1, for invoices for the medical services provided by Dr. Dakota of $200 per session);
vii. Rehab Sports – physiotherapy and chiropractic massage including a TENS machine Shelly received treatment 2 x to 3 x per week in Oct – Nov 2015. (See Exhibit 1, Tab 25, for invoices for physiotherapy – Oct – Nov 2015 $113.00 + $56.50);
viii. Dr. Charles, a chiropractor, attended for an assessment and treatment including chiropractic adjustments, strengthening exercises and soft tissue massages. See Exhibit 1, Vol. 2, Tab 25, for the invoices for the assessment $40.00. See Exhibit 7 for the invoices for the treatment from June 14, 2016 to October 2016 totalling $2,100.00; and
ix. Shelly also sought treatment for her headaches, neck pains, and shoulder pains whenever she travelled to the United States she sought out specialists who treat injury and pain which included alternative medicine, massage therapy, acupuncture, meditation and naturopathic medicine and treatment. Invoices regarding the treatment in India are found at Ex 1 invoice from Claire Haines – naturopathy and accupunture – August 2, 2013 – in house doctor – hot oil massage – herbal medicine – medication – 700 USD (one day) and Ex 1 – V2 – Tab 28 – July 22, 2015 – treatment – assessment by doctor – recommended a number of medications that she had to take on a daily basis – to treat pain in neck and head – some of the medication is listed – medicine prescribed – she paid for treatment – Cost $2045 USD; and Exhibit 1 – Cleveland facility – naturopathy treatment – to have the natural remedy based on 5 nature – water, earth, sky, sun, air – regimented routine – herbal potion to cleanse – to rid toxins – then start treating with herbs – early in morning two types of potions – ½ hour intervals – yoga – use earth to suck up toxins – massage – herbs for pain – she stayed there for 14 days – March 2016 – costs about 27,000 USD – total – medication – herbs, food, treatment.
Future Medical Care and Treatment
Shelly stated that the massage therapist and chiropractor work well together – yes she will continue this therapy. She would also like to obtain injections from Dr. Dakota as the Botox assisted with her headaches. Shelly will also continue to obtain treatment in the US as it is helpful – healing – naturopathy – combing both treatments – accupunture, meditation – breathing exercises – she will go back again. She continues to take medication for her pain (Advil and Tylenol 3), she does yoga a lot, has invested in an electric massage machine (which she uses daily) but it is huge and hard to manipulate. She also receives hand massages from family and friends and professionals when she can afford them.
Effect of the January 1, 2011 Accident on Her Employment
Shelly testified that she returned to work after the accident. She said that she was able to return as she was well-established and had amazing staff. He job was flexible and she was able to carry out most of responsibilities but gave some to V.P. Karla Stover (2011) – and also sometimes to Betsy West (2012) (chairpersons).
Her closest colleagues knew of the accident because she told them. She had to speak to them in case of emergency – they knew and helped – she had towels, Tylenol, Advil, cushions in her office. Shelly stated that she would take breaks to erase the pain. Her hours changed, her waking up time changed. She began arriving late – instead of 7:30 she arrived at 8:30 due to lack of sleep 8:15 – 8:30 then dismissal same – she would leave earlier.
Shelly stated that she slowed down considerably – not greeting students – parent safety program she started not going to that either. She did not monitor recesses or lunchtime – also – interaction with kids decreased and extracurricular deceased other programs were impacted.
Shelly stated that her health was so affected that she was unable to continue her position as principal and retired on December 31, 2015 due to her continuous headaches, pain, sleepless nights, lack of energy to perform. She said she had cut down activities and had stopped attending board level meetings and sent reps to attend. She said she was not giving 100%. It was difficult to continue as she was acting substandard and not happy with herself. See Ex 1.
Shelly stated that her health issues became her #1 priority. It was hard to let go – job, status, health – but after discussion with her doctor and family she decided to retire early. She stated that she did not want to retire – she went through many obstructions to get where she would want to be – she stated there was no mandatory age for retirement – she would work as long as she could and planned to work until 70.
Claim for Future Loss of Income
In 2015 Shelly’s income was approximately $125,000. See Exhibit 8, T-4 income.
Shelly retired on December 31, 2015. She has been receiving pension income since January 2016. Her annual pension is $60,000.00. See Exhibit 7 – Teacher’s Pension Plan statement.
Shelly testified that her loss of income for 2016 was her gross annual salary ($125,000) minus her actual pension income ($60,000.00) or approximately $65,000 per year till retirement. She testified that she planned to retire at age 70 on June 30, 2030 fifteen years later than her actual retirement. She further testified that she retired at age 55 and her annual pension in pay was lower than if she had been able to work to June 30, 2030.
See Exhibit 11 – Teacher’s pension calculator – which was inputted by Shelly to illustrate the increase in annual pension income she would have received had she retired at a later date.
Loss of Past and Future Medical Expenses
Shelly seeks reimbursement for past and future medical expenses incurred as a result of the January 1, 2011 accident. The amount of past and future medical expenses sought was provided for you in detail by counsel for Shelly in his closing argument.
During the cross-examination of Shelly the evidence established that the plaintiff has received coverage for out of pocket expenses paid directly to the care provider totalling $3,395 and a further payment of $11,000 for out of pocket medical expenses. There were also submissions by the defence that Shelly could have but did not apply for other benefits.
It is the law in Ontario that all owners of motor vehicles carry accident benefit insurance. The payments made to date on behalf of or to the plaintiff were made in accordance with the plaintiff’s own accident benefit coverage. The amounts paid to or on behalf of the plaintiff or what may or may not have been available to her are of no concern to you and shall not be considered in your deliberations. Any money received will automatically be deducted from any award ordered by you which may be due to the plaintiff on account of loss of past and future medical expenses and treatment. You the jury are not to worry about these payments nor are you to take them into account in your determination of any damages that may determine are payable to the plaintiff.
Witness # 2 – Sarah Cooper
(2) The next witness was Shelly’s daughter Sarah Cooper. Sarah is 26 years old and resides downtown Toronto. She testified that she has a very close relationship with her mother and speaks to her on average one times per day and sees her mother once every two weeks. Sarah is aware of the accident on January 1, 2011.
Prior to the accident she described her mother as very bustling. She said her mother would go to gym and exercise and it was difficult to keep up with her. She stated that her mother was always in good spirits, that she loved her job and that her mother had a full and active life before the accident. She also stated that her mother was a clean freak and kept a spotless house and was always mopping, vacuuming, gardening and busy. She stated that her mother would come clean her condo after Sarah cleaned
After the accident the garden was gone and her mother does not visit with the same frequency and rarely stays overnight. She has no recollection of exercising with her mother since the 2011 accident and her home once spotless is now dirty. Her mother waits for her to come home to clean and she provides assistance. The pain her mother experiences has affected her movement – and it affects her mood. Sometimes she snaps for no reason and she wasn’t like that before.
Now her mother watches television – which was unheard of before.
Sarah said it was like a light switched off. Her mother has changed. She understands that her mother retired due to her injuries from the accident. It is her observation that her mother just couldn’t do it anymore. She doesn’t have the same fulfilment in life. Sarah and her sisters tried to talk her into retiring sooner but she wouldn’t she said this is what makes me happy.
Witness # 3 – Kelly
(3) The next witness was Shelly’s daughter Kelly Cooper. Kelly is 30 years old and is a high school math teacher. Kelly is married and has two boys aged 7 and 5.
Kelly lives close to her mother (15 minutes away) and shares a loving relationship with her. Kelly is aware of the accident that took place on January 1, 2011 as her mother telephoned her and told her of accident. Kelly said she could hear the pain in her mother’s voice and noticed a change immediately in her mother.
Before January 1, 2011 Kelly described her mother as fearless, active, confident. Kelly stated that the words “I can’t” weren’t in her mother’s vocabulary. Shelly was very active and hosted events, big parties, went to the gym, enjoyed cooking for everyone, and was always cleaning. Kelly stated that her mother was on the go all the time. Kelly stated “you could tell she was a principal”.
From Kelly’s observation her mother found it difficult to maintain the same level of activity. She couldn’t do that anymore. Her mother was in constant pain and tired – overall constantly tired and in pain – which limited her abilities.
Kelly saw her mother two weekends after the accident in May of 2011. Her mother was standing crooked. She could hear pain in her voice. She had her hand on her neck and she looked very tired. She stated that there was a “striking difference” in her mother before and after the accident.
Kelly stated from her observations that her mother is in constant pain, has difficulty sleeping, has fatigue in her face. When Kelly massages her she hears her mother groan from pain. She states that her mother is usually laying on the couch when she visits.
Emotionally, since the accident, Kelly didn’t expect to see the roles reverse so quickly. She had never seen her with anxiety but her mother is now fearful and has pure anxiety. Kelly testified that her mother has gone from fearless to fearful.
Kelly stated that her mother is a very anxious person now – constantly in pain – everything we ask of her she has to hesitate before she does it – she is not the same person.
As for her mother’s retirement – her mother told her in the spring of 2015 that she planned to retire at Christmas. Kelly said her mother’s health was not good and the drive was making things worse, she was concerned about her
Witness # 4 – Betsy West
(4) The next witness was Betsy West, who is a kindergarten teacher at Shelly’s public school. Janet had been with the TDSB about 24 years and a kindergarten teacher for 10 years.
Shelly was Janet’s principal since 2009. Janet saw Shelly numerous times a day. Janet was aware of the car accident that occurred on January 1, 2011.
Prior to the accident Janet described Shelly as a principal as being: enthusiastic, visible, a cheerleader for the school. Janet stated that the plaintiff brought a lot of extra-curricular activities to the school and in particular “Dance” nights when the plaintiff would be dancing with the kids and the teachers. Shelly would lead assemblies – presentations – welcomed and thanked them at the end – be on the play grounds – she would shoot baskets for charity (play basketball). Shelly was rarely away and always at school. To Janet’s recollect Shelly was at school when Janet arrived and at school when Janet left.
After the accident Janet stated that Shelly was in pain and started going to doctors. Janet stated that you would see her in her office in pain. After the accident Shelly was less likely to be at playground and spent more time in her office with her door shut. She stated that Shelly was still enthusiastic and bouncy but she was putting on a brave face.
After the accident Janet stated that the plaintiff was less bouncy. She would go to Dance nights but not doing the moves – encouraging kids but she wasn’t dancing anymore. However Janet stated that Shelly still brought food to school for the teachers but struggled to carry it in.
When Shelly announced that she was going to retire – Janet was very surprised as she expected that Shelly would have finished out the year.
Witness # 5 – Karla Stover
(5) The next witness was Karla Stover. Karla is a teacher at the Public School. She has been a teacher for 20 years and the plaintiff was her principal. Karla began working for Shelly six or seven years ago. The interacted daily
Prior to the January 1, 2011 accident, Karla stated that Shelly was quite involved with school, you would see her outside in the morning she would help kids, she would skip rope and be out for recesses, she ran Dance nights twice per week and would do dancing with the kids.
After the accident Shelly wasn’t physically doing as much. She attended Jump for Heart but wouldn’t jump. She stopped dancing and high school kids did that for her.
Janet recounted that Shelly would stop in the middle of the meeting and grab her neck – she would stop talking- she would ask Karla things again (you just asked me) – she couldn’t set up the room before a meeting.
As for physical assistance Shelly would ask help to move the boxes in the office, Karla would pull binders down for her. Karla was called in the office to push on Shelly back to relieve the pain. Karla advised that on one occasion Shelly lay on the ground and asked her to push the heel of her palm into Shelly’s back. Karla testified that she pushed so hard she was afraid that she would hurt Shelly.
When Shelly ’s retirement was announced Karla was surprised because it wasn’t a June retirement. Shelly called everyone into the staff room – she advised that she could no longer do her job well enough as a result of the effects of the car accident – and she was retiring.
Witness # 6 – Dr. Charles
(6) The next witness was Dr. Charles. Dr. Charles is a chiropractor practising for the past 22 years. He practises at Happy Chiro clinic. Dr. Charles evaluated the plaintiff in June of 2016. See Exhibit 15.
Shelly was put on a cycle of care – 10 visits then re-evaluation.
The last time Dr. Charles saw Shelly was November 3, 2016. She was looking for other treatment as the treatment provided by Dr. Charles was financially burdensome to her.
Dr. Charles stated that due to the chronic nature of injury she needed one month of care for every year of injury. The accident occurred in 2011 and she is recommended to have treatment twice per week for a minimum of 6 months of care of chiropractic adjustments and soft tissue massage no less than bi-weekly for massage therapy.
Dr. Charles stated that a reasonable estimation of required future treatment would be 2 years of care to deal with the chronic nature. The cost of the future treatment for a 2 year care plan is $8,000 per year for chiropractic and massage therapy care.
Once Shelly is no longer symptomatic she would require maintenance of approximately $2,000 per year for the remainder of her lifetime.
Witness # 7 – Dr. Best
(7) The next witness was Shelly’s family physician Dr. Best. Dr. Best has been a family physician since 1989 or for 27 years. See Exhibit 16 for a copy of Dr. Best’s resume and credentials.
Shelly has been Dr. Best’s patient since at least 2000. His specialty is a family physician. Dr. Best first saw the plaintiff in relation to her January 1, 2011 accident on May 9, 2011. Shelly attended his office because of the car accident.
See Exhibit 1, for Dr. Best’s records for the period 2008 to June 25, 2012.
The entry in Dr. Best’s notes for May 9, 2011 reads as follows: “A: whiplash, cervical, new”, S: “no distress in arms; history of same injury 1991-1992; right side of neck”; O: “decrease range of motion in neck; stiffness in the neck; par cervical muscle spasms; right side worse; bicep and brachlaradiaslis reflex normal; power symmetry in both hands”; P: “require physio” – consult: whiplash injury cervical spine Physiotherapy”. Dr. Best recommended physiotherapy.
On July 4, 2011 the plaintiff attended before Dr. Best regarding – A: whiplash, cervical, f/u”, Dr. Best’s notes record that the plaintiff was very stressed – worried about pain that she was having on her face – she looked exhausted and tired – looked unkempt – usually she looks after herself – complete jaw rest; On June 18, 2012 Dr. Best’s notes record neck muscle spasms – no numbness – no weakness in upper limbs – neck range of motion decreased – rest, heat, gentle stretches, muscle relaxants and analgesics – foot pain – compressive – talked about shoe wear; On June 25, 2012 Dr. Best’s notes record neck muscle spasms – decrease motion in her neck.
Dr. Best’s records for the next period August 2012 to October 31, 2014 are found at Exhibit 1.
On August 20, 2012, Dr. Best’s records indicate an accident in 2012 – Dr. Best stated that this entry (accident on May 11, 2012) this is an error – MY ERROR – the accident was JANUARY 1, 2011 – “I have since corrected my records”. See records at Exhibit 1, tab 12, p. 256. Dr. Best referred the plaintiff to Dr. Walker – Neurologist – regarding headaches. Dr. Best further referred Shelly to Dr. Langer, who is a rehabilitation specialist on November 15, 2012 – to assist with cervical muscle spasm and facial problems including headaches.
Dr. Best continued to treat Shelly and saw her on: October 10, 2012 (pain); December 20, 2012; January 21, 2013; February 13, 2013; February 20, 2013 (cervical muscle spasms); March 25, 2013 (reviewed whiplash injury); August 13, 2013; August 29, 2013 (sharp pain and dizzy spells); August 29, 2013; September 3, 2013; October 31, 2013; June 18, 2014 (discussion about Dr. Dakota’s Botox treatments and other ongoing treatments for injuries); October 31, 2014 (sudden tearing pain in right eye and severe headaches).
Dr. Best’s records for the next period to October 10, 2015 are found at Exhibit 1.
Dr. Best saw Shelly on the following further dates: March 5, 2015; June 8, 2015 (headaches, appears younger than stated age, unable to sleep well; uses heat and cold packs; has great deal of problem sleeping at night; has tried course of Botox; unable to carry out her teaching duties; fell that she cannot perform at work due to her problem with focus and distraction from the pain. Has been paying privately for treatment – insurance is no longer covering her therapy; tries pacing herself at work; she feels that she has treid everything to keep going but beginning to feel overwhelmed and decided to retire. Would like to take some time to pursue treatment of her ailment.); July 3, 2015; September 2, 2015; September 15, 2015 (shoulder pain persistent; feels unable to carry on with her work; retirement paper will be filed for December retirement; wish to contribute to social work in community; has provided mentorship to many students) reviewed treatment with rest, heat, stretch. Reviewed role or muscle relaxants and analgesics; October 10, 2015.
Dr. Best’s records for the next period from December 30, 2015 to date are found at Exhibit 17.
Dr. Best saw Shelly on the following further dates: June 1, 2016 (cervical neck spasms, decreased range of motion – he recommended rest, gentle heat and stretch and physiotherapy.); July 19, 2016 (prescription repeat, he talked about her neck, she is consistently exercising – 6 – 7 times per week and attends therapy 3 x wk., she is now retired, she stretches, she is focusing on recovery and rehab); and Oct 11, 2106 (she avoids heavy work, has pain, uses chiropractor and massage. Dr. Best cautions people re physiotherapy – they have a role – if it makes you better – good – but be careful).
Dr. Best testified that the plaintiff retired because she had too much neck pain caused by the accident. Dr. Best testified that similar to the plaintiff’s last convalescent (in 1991 – 1992) she continued to work and her ability to carry on working was “a testament to her will to recover and be productive”. Dr. Best stated that the plaintiff “may never recover”. He further stated that the plaintiff wants to recover to pursue rehabilitation. He testified that is optimistic but realistic – it will take years – the history supports that conclusion – as we age our ability to recover diminishes.
Witness # 8 – Dr. Joseph Efraim
(8) Dr. Joseph Efraim is a rehabilitation and chronic pain specialist. Dr. Efraim was certified by the court as an expert to provide testimony in the areas of rehabilitation medicine, soft tissue injuries and chronic pain.
See Exhibit 18 for a copy of Dr. Efraim’s resume and credentials. See Exhibit 19 for a copy of Form 53, being an acknowledgment of expert’s duty, signed by Dr. Efraim.
Dr. Efraim testified that he was a chronic pain expert and that the term “chronic pain” means pain of more than three months. Dr. Efraim testified that 80% of his patients are chronic pain patients and the remaining 20% have nerve damage.
Dr. Efraim estimated that he has treated 54,800 patients during his specialty and 80% of these patients require treatment due to chronic pain. Dr. Efraim has been certified as an expert in court more than 20 times with eight to nine times as a specialist in chronic pain.
Dr. Efraim was retained to examine the Shelly and provide an expert opinion as to her injuries and treatment.
In preparation for his testimony Dr. Efraim prepared an expert report dated September 11, 2015, which was marked as Exhibit H. The purpose of the expert report is to summarize the findings of the expert and to inform the defence of the findings. However, when an expert provides testimony in court it is the expert’s testimony that the jury relies upon for their facts and the expert report is not provided to the jury for reference.
Dr. Efraim testified that he examined Shelly on September 11, 2015. Dr. Efraim stated that he undertook an examination of Shelly from “head to toe”. He noted as follows: head – headache and pain on right side of her head – occurs every day; pain in upper back and middle back – worse if she sits for a long time; pain – insomnia – (people do not sleep well – causes muscle tightness and depression – she wakes up every ½ hour due to pain – very tired all the time – she does not sleep well; psychological stress – more sensitive to pain stimuli – he reviews the medical records – adjustment disorder – psychological problems; and pain – headaches – doesn’t sleep well and is under stress.
Dr. Efraim watched how the patient walked and noted there was no limping. He looks for scars on head of a past injury to explain pain and there are no scars. He checked her neck – to see if anything is broken or there is any nerve damage or soft tissue damage. He checks the range of movement which he found as normal but she experienced pain when she extended. Dr. Efraim found no broken bones. He touches the muscles to determine soft tissue damage. He is a soft tissue injury expert. He said soft tissue injury does not appear on a MRI – so we touch them. Dr. Efraim explained that when muscles are damaged they are swollen and tight. He used an example of a steak to explain soft tissue damage. A rare steak is soft and nice which is okay, a well done steak is firm – that is how chef determines how well a steak is cooked and that is how he determines muscle damage. The tighter the muscles the more damage the muscle has had.
Dr. Efraim touched Shelly’s neck and found moderate to severe tightness. Dr. Efraim stated that his test was an objective test. He checked with palpitations and found the plaintiff’s neck was not normal right side – also behind ear – to him she has damage on the right side of the neck. He said “that is my expert opinion”.
Dr. Efraim found that Shelly has limited movement on right side on back – he used his fingers and found isolated muscle problems – upper back – moderately stiff and tender on right side.
Dr. Efraim advised that Shelly has soft tissue injury on neck and right side of her back.
Dr. Efraim determined that the plaintiff has a myofascial injury of the neck and of the cervical spine. Dr. Efraim concluded that the plaintiff has cervicongenic headaches due to her neck injury. He stated that the myofascial injury was connected to the spine.
Dr. Efraim testified that Shelly’s insomnia is post traumatic and related to her injuries and the accident.
Dr. Efraim explained chronic pain syndrome. Dr. Efraim advised that chronic pain is complicated with insomnia and stress problems. He said that it always involves three factors – pain, sleep, stress.
Dr. Efraim found that the plaintiff had pain from her muscles and she is not sleeping and had been diagnosed with stress.
As for the plaintiff’s ability to work Dr. Efraim stated that the main purpose is to bring the patient back to function – history is very important. In the present case the plaintiff told him she is a principal at an elementary school working full-time. Shelly returned to work full-time after the accident but was not able to function as she used to function. She uses her summer vacation to seek assistance with her injuries.
Dr. Efraim testified that Shelly has suffered physical impairment. He felt her future treatments should include being followed by a psychologist, use of a sleeping pill to assist with sleep, start an anti-depressant to control anxiety, and she needs medication to control her pain. Dr. Efraim felt that Shelly required Botox injections which he explained were medications that go into the muscle to help relax the muscle. Dr. Efraim felt that Shelly should also continue with her gym exercise.
Dr. Efraim stated that he examined Shelly four years after the accident and that she qualifies as chronic pain – she will have flare ups – she will require medications physio and injections for the rest of her life. Dr. Efraim further testified that the plaintiff will have difficulty doing heavier work such as pushing, lifting laundry snow removal – she will require help.
Dr. Efraim expressed the opinion that Shelly had retired due to the accident – as she can’t function due to pain. She requires injections, medications and he felt that it was reasonable that she would consider early retirement.
Dr. Efraim stated that the injuries suffered by Shelly are permanent in nature. His opinion was that Shelly has a permanent injury of the soft tissues from this accident that occurred on January 1, 2011.
Dr. Efraim’s final opinion was that Shelly had a permanent and serious impairment of an important physical function caused by the accident as it has lasted in excess of four years and affects all aspects of her life.
On cross-examination Dr. Efraim clarified that the letter dated December 31, 2010 which is referenced by the defendants’ counsel as evidencing pain by the plaintiff for a three year period immediately prior to the accident references pain from a bone examination. The injuries suffered by the plaintiff were soft tissue injury and not bone and are not connected. He also testified that he remembered the plaintiff both by independent recollection and through his records.
Witness # 9 – Dr. Dakota
(9) Dr. Dakota is a specialist in physical medicine and rehabilitation. He has practised in Canada for the past 30 years. Dr. Dakota is the treating rehabilitation specialist who attended upon Shelly. See Exhibit 20 for a copy of Dr. Dakota’s resume and credentials.
Dr. Dakota first examined Shelly on December 9, 2013, following a referral from Dr. Walker. Dr. Dakota’s reports regarding his examination and treatment of Shelly are found at Exhibit 1, Tab 17 and are in reverse order of attendances. Shelly advised that she was involved in two previous accidents. Her last accident was January 1, 2011.
Dr. Dakota examined Shelly and stated that she suffered severe myofascial strain injuries to her neck, shoulder girdle and to a lesser extent the low back region as a result of the January 1, 2011 motor vehicle accident. She has ongoing myofascial pain affecting the right side of her head, neck, shoulder girdle and low back regions. She has severe occipital headaches on a daily basis. Her treatments so far haven’t given her relief of her symptoms.
Dr. Dakota recommended isometric stretching, strengthening and postural correction exercises, acupressure techniques, the use of an Obus form supporting roll and a footstool. Dr. Dakota also prescribed Botox therapy for her neck and headaches. He determined that she will require 200 units every 3 months. The cost of the treatments including the medicine is approximately $1,000 per treatment.
On March 31, 2014, June 30, 2014, September 25, 2014, and January 13, 2015, Dr. Dakota injected the Botox solution for the Shelly’s headaches and neck pain. A total of 200 units were injected.
Dr. Dakota advised that Shelly should have three to four Botox injections each year for an indefinite period to assist with her headaches and neck pain.
Dr. Dakota stated that his 30 years of experience enables him to state with certainty what to expect from her health even if he hasn’t seen her since January 2013. Dr. Dakota stated that the reason she quit working was because she can’t continue.
He also stated that as a result of his 30 years’ experience, his review of Dr. Walker’s file and his examination of Shelly, he knows that her injuries stem from the last accident.
Witness # 10 – Dr. Judy Franks
(10) Dr. Judy Franks, a family physician, was called by the defence to testify as to an insurance examination she conducted of Shelly on June 20, 2012 in connection with the car accident of January 1, 2011. Following the examination, Dr. Franks prepared an insurer’s examination report dated June 27, 2012 and an Addendum.
By way of experience, Dr. Franks advised that she has been a family physician for approximately five years. She stated that she treats injured people and sees approximately 25 patients per day. See Exhibit 21 for Dr. Franks’s resume and credentials.
Dr. Franks confirmed that she was not an expert in chronic pain or rehabilitation medicine nor does she have a practice specifically related to chronic pain. Dr. Franks was conducting an assessment of Shelly for Intact Insurance as part of the accident benefits regime to determine whether Shelly required additional treatment.
The history obtained by Dr. Franks confirmed that Shelly was in a car accident 20 years ago when she sustained a whiplash injury but had recovered. Shelly advised that she was working on modified duties, that she had neck and head pain on the right side which she assessed as 10/10, that she had upper back pain (constant) assessed at 8/10, that she had bilateral shoulder pain assessed at 10/10 and that she had right arm/pressure aggravated by sitting for more than 30 minutes.
As a result of her examination Dr. Franks diagnosed Shelly as having sustained a soft tissue injury of the neck, upper back, shoulders, upper extremities and non-specific headaches.
Following the examination Dr. Franks’s made a finding that Shelly did not demonstrate significant actual impairments or limitations. Dr. Franks concluded that Shelly did not need additional treatment or prescription medications. She testified that the benefit of therapy may no longer exist and there was no need for passive therapy.
Following the examination and report Dr. Franks prepared an Addendum regarding receipt and review of a MRI and an x-ray. Dr. Franks stated that the x-ray did not disclose any fractures only mild degenerative age related changes. The MRI revealed no abnormalities in the brain, as described by Dr. Walker.
Witness # 11 – John Doe
(11) The defendant John Doe was the last witness called by the defence. The defendant was the driver of the vehicle. He was driving his mother’s mini-van at the time of the accident. The defendant confirmed that the accident occurred on the 401 at Ajax at the Allan exit on January 1, 2011 at approximately 5 – 5:30 p.m.
The defendant further confirmed that the mini-van that he was driving hit the plaintiff’s vehicle from behind. He stated that they gradually made their way to the right side of the road.
The defendant stated that he spoke to the plaintiff who seemed agitated but otherwise quite quiet. He stated that the plaintiff did not show signs of injury that he could tell. He stated that she said nothing of being injured.
The defendant stated that he and the plaintiff exchanged information and waited for the police and the tow truck to arrive which took in total about one hour. The defendant stated that the plaintiff left before him as his vehicle was towed from the scene.
74. On January 1, 2011 there was a motor vehicle accident on the 410 at the Allan exit in Toronto. The defendant John Doe has admitted liability for the accident and any injuries or damages that have occurred to Shelly Cooper.
75. The admission by John Doe that he is responsible for the accident must not bias you in favour of the defendants or plaintiff nor prejudice you against the defendant or plaintiffs.
76. The plaintiff Shelly claims that she was injured as a result of the accident and have suffered loss as a consequence. The defendant, John, does not admit that the accident caused injury to the plaintiff Shelly.
77. Your verdict in this case will be given in the form of answers to questions. There are a series of questions dealing with Shelly Cooper’s claim.
78. I will now speak to you generally about the questions.
79. In Question #1 respecting the plaintiff you are asked if the plaintiff sustained any injuries in the motor vehicle accident of January 1, 2011. In order to understand the question you must have a clear understanding of what the word “cause” means.
80. An injury is said to be caused by the collision of January 1, 2011 if any new injury, no matter how minor or significant, was brought about by the January 1, 2011 collision.
81. For the defendant to be held liable to pay damages to a plaintiff, it is not necessary that the collision be the “sole cause” of the injury or injuries. Rather, the collision must be “a cause” of such injury or injuries for a finding by you that the defendant caused it. It is also important and you must remember that the phrase “injuries” in each first question refers to both any new injuries bought about by the collision, as well as any worsening of a pre-existing injury. They are both “injuries” as that word is defined for purposes of Question #1 that you are being called on to answer.
82. You need not be satisfied there was causation on the basis of scientific precision. Causation is essentially a practical question of fact that can best be answered by ordinary common sense. The rules of causation consider whether “but for” the defendant’s act the plaintiff’s damages would have been incurred and the standard of proof is on a balance of probabilities.
83. If you have found that the collision caused injury to the plaintiff, as I have defined the term “cause” for you, you are to answer “Yes” to Question #1 respecting the plaintiff. You then go on and answer Question #2 by detailing what amount, if any, you assess the damages of the plaintiff caused by the injuries sustained in the motor vehicle accident of January 1, 2011.
84. If you have found that the collision did not cause injury to the plaintiff, you answer “No” to Question #1 and your deliberations are over.
85. If you have found that the collision caused injury to the plaintiff, you will go on and answer the questions that follow at Question #2 respecting the plaintiff.
86. In Question #2 you are to determine the amount of the damages suffered by the plaintiff. The concept of causation also applies to your assessment of damages. In determining that, you must remember that the defendant is only responsible for any new injury that was caused by the collision or some pre-existing injury that was made worse by the collision. The defendant is not responsible for any damage or worsening of a pre-existing condition that would have occurred anyway during a plaintiff’s lifetime.
87. Your first step, therefore, is to assess what, if any, new injury or worsening of a pre-existing injury a plaintiff sustained as a result of the collision.
88. Thereafter, you are to award a plaintiff damages only for those injuries that you find were brought about or were made worse as a result of the collision.
89. In answering these questions, there are two legal principles known as the “thin skull” and “crumbling skull” rules which are to be applied.
90. The “thin skull” rule means that a negligent defendant must take his victim as he finds him or her. It is not a defense to say a person would have suffered less injury but for the fact that she had an unusually thin skull, meaning she was more vulnerable to the effects of an injury than someone else.
91. The “crumbling skull” rule means that a defendant is not liable to compensate a plaintiff for any debilitating effects of a pre-existing condition that a plaintiff would have experienced in any event, meaning if the collision had not occurred.
92. You are to apply these principles, based on the evidence before you, in determining the issue of causation of losses and damage assessment.
93. If you were to find and believe that the plaintiff’s condition is in fact true and it was caused by a combination of the injury sustained in the January 1, 2011 collision and any other incidents she has been involved in, the plaintiff is only entitled to be compensated for those injuries which were brought about or made worse by the January 1, 2011 collision and not for any such new injury or worsening of a pre-existing injury which would have occurred in any event even if the January 1, 2011 motor vehicle collision had not occurred.
94. The essential purpose and most basic principle of negligence law is to restore a plaintiff to the position she would have enjoyed “but for” the defendant’s negligence. She is not to be placed in a better position than she was before the collision.
95. You must therefore determine based on the evidence introduced in this trial if in fact there were any pre-existing problems and complaints with respect to those parts of a plaintiff’s body that she says were injured or worsened in the subject collision. You are to award damages only for those injuries that you find, on the evidence, were brought about or made worse as a result of the January 1, 2011 collision. A plaintiff is entitled to be compensated for either a new injury that did not exist before or a worsening of a pre-existing injury that did exist as long as on the evidence before you, such worsening or new injury was “caused”, as I have defined that term for you, by the January 1, 2011 collision.
96. In Question #2 you are to determine the amount of the damages, if you have found that the plaintiff suffered injury or injuries caused by collision.
97. Damages simply mean monetary or financial compensation for the loss “caused” by the wrongful conduct of another. You are required to assess these damages and place a number on them.
98. In assessing damages you should, as nearly as possible, award the amount which will put the plaintiff in the same position that she would have been in, if she had not sustained the injuries. However, perfect compensation or exact mathematical compensation is hardly possible. You cannot put an injured party back again exactly into her original position. You must bring your reasonable common sense to bear so that your award will be fair to all parties.
99. You should remember that this is the only occasion on which compensation can be given. Under our law the plaintiff must sue in this one action for all of her losses, past, present and future. No subsequent action may be brought either to increase or decrease the award made by you in the event the loss turns out to be greater or less than expected at the time of the trial. The amount awarded by you should be reasonable, and not extravagant or oppressive. On the other hand, it should not be inadequate. Your aim should be to reach a fair balance, neither too much nor too little.
100. You cannot ask “How much money would I take to undergo these injuries?” The very asking of that question injects emotion into your decision-making and renders your task impossible as no reasonable person would charge a sum of money for an injury. Instead, you should exchange views and examine each other’s reasoning and arrive at an assessment upon which at least five of you agree.
101. I must say again that in answering the questions you need not be unanimous. If you can arrive at an answer in which five of you agree, then that is sufficient to enable your foreperson to put the answer in. It is not necessary that the same five of you agree on each question. A different five can find agreement on a different question.
102. There are several types of damages sought by the plaintiff in this case. The types of damages sought are as follows:
1. General damages for pain and suffering and loss of enjoyment of life;
2. Past loss of income from January 1, 2016 to the date of trial;
3. Future loss of income from the date of trial to June 30, 2030 and pension reduction from June 30, 2030 to June 30, 2043 (presumed date of death based on mortality tables);
4. Past medical and rehabilitation expenses to the date of trial; and
5. Future medical and rehabilitation expenses from the date of trial to June 30, 2031.
103. These categories are called “heads of damages”. I will review and explain them to you later in my instructions.
104. General Damages are for non-pecuniary loss. Non-pecuniary losses are personal injury losses that have not required an actual outlay of money. The purpose of such an award is to compensate a plaintiff for her non-financial losses caused by the injuries. It compensates the plaintiff for such things as pain, suffering, disability, inconvenience and loss of enjoyment of life. In awarding general damages, you are compensating the plaintiff for the consequences, which flow naturally from the injuries she sustained. Any assessment of general damages must be based on all of the evidence.
105. It is generally not possible to put a plaintiff back in the position she would have been in had the injury not occurred. It is your obligation as sensible people to say what amount is fair, reasonable and proper compensation. It is not a mathematical calculation.
106. Here are some of the various matters that may be considered by you in deciding on your award for general damages:
-the nature and extent of the injuries sustained;
-any pain and suffering undergone as a result of the accident; any pain and suffering which she will experience in the future as a result of the accident; any pain she suffered or will suffer in carrying out her housekeeping and homemaking duties;
-any effect on her health; the probable duration of the injuries, that is, the temporary or permanent disability that flows from the injuries;
-any disability or humiliation or embarrassment in connection with the injuries;
-any inability to enjoy the normal amenities of life as a consequence;
-any inability to enjoy the normal social routine of life that would be enjoyed by a person of her age;
-any disruption in her personal relationships;
-any loss of self-esteem she suffered or will suffer in being unable to do homemaking and housekeeping duties, and any loss of enjoyment of life in living in an orderly and functioning home.
PAST LOSS OF INCOME (FROM JANUARY 1, 2011 TO DATE OF TRIAL)
107. The plaintiff has claimed that she intended to work until age 70 but was required to retire at age 56 because of her injuries. If you determine that the plaintiff intended to retire at age 70 but retired due to injuries suffered as a result of the January 1, 2011 car accident and suffered a loss of income from the date of her “early” retirement (January 1, 2016) to the date of trial you are required to determine the monetary loss suffered by the plaintiff.
FUTURE LOSS OF INCOME
108. (a) The plaintiff has claimed that she intended to work until age 70 but was required to retire at age 56 because of her injuries. If you determine that the plaintiff intended to work until age 70 but retired early due to injuries suffered as a result of the January 1, 2011 car accident and suffered a loss of income from the date of trial to the date of her “intended” retirement, you are required to determine the monetary loss suffered by the plaintiff.
108. (b) The plaintiff has further claimed that had she retired at age 70 that her annual pension payments would have been greater and she has therefore suffered an ongoing loss being the difference in her current annual pension ($60,000.00) versus the pension she would otherwise have received had she retired at age 70 ($67,000.00) from the date of her alleged “intended” retirement (June 30, 2030) to June 30, 2043. For your assistance the loss, if any, for this heading is limited to 13 years. If you determine that the plaintiff intended to work until age 70 but retired early duty to injuries suffered as a result of the January 1, 2011 car accident and suffered a pension reduction from the date of her “intended” retirement to June 30, 2030 you are required to determine the monetary loss suffered by the plaintiff.
PAST AND FUTURE MEDICAL AND REHABILITATION EXPENSES
109. The plaintiff seeks the cost of expenses relating to medical care, treatment and prescriptions, that the plaintiff was required to pay as a result of injuries suffered by the January 1, 2011 accident. If you have determined that the plaintiff suffered injuries and incurred expenses relating to those injuries then she will be entitled to damages equal to the amount of expenses paid by her. You need not consider whether the plaintiff received any other benefits which provided payment towards the special damages as these amounts will be dealt with outside of your verdict. Your job is to determine whether damages for the cost of care and treatment were incurred as a result of the January 1, 2011 accident and to determine the amount of damages, if any, due to the plaintiff.
110. With respect to the claim for future cost of care and treatment, the jury will be required to determine whether the plaintiff suffered injuries by the January 1, 2011 accident and as a result will incur expenses relating to medical care, treatment and prescriptions from the date of trial forward.
BURDEN OF PROOF
111. In respect of each claim for damages, the burden is on the plaintiff to prove that the injury and loss giving rise to the claim for damages occurred and that it occurred as a consequence of the January 1, 2011 car accident.
STANDARD OF PROOF—GENERAL
112. As I told you, all facts must be proven on a balance of probabilities. In your assessment of damages, this principle also applies to any fact on which Shelly Cooper relies to prove that her injuries and loss occurred. For example, facts relied on to establish the plaintiff’s current physical condition must be proven by expert testimony or otherwise on a balance of probabilities. This also applies to claims that can be quantified and proven with certainty, such as the pre-trial, out-of-pocket expenses incurred by the plaintiff.
STANDARD OF PROOF—CONTINGENT OR FUTURE EVENTS
112. Losses that will only occur in the future, however, are incapable of certain proof. For example, a plaintiff may claim that a future loss will develop as a result of the incident in question but this is only a potential or possible loss. The same is true of lost future income and earning capacity: it cannot be said with certainty that a plaintiff would have earned a certain income had this injury not occurred. In assessing lost income and earning capacity, the common events of life, such as sickness, lay-offs, pay raises, and promotions, should be taken into account even when they cannot be proven to be more likely than not.
JURY’S DUTY—CONTINGENT OR FUTURE EVENTS
114. In such situations you must evaluate the risk or likelihood that some events will occur. Your function as a jury in deciding what might happen in the future is different from your function in deciding what actually happened.
COMPARISON WITH STANDARD OF PROOF FOR ACTUAL EVENTS
115. When deciding what actually happened in the past, you must weigh the evidence and reach conclusions on a balance of probabilities. Anything more probable than not you should treat as certain. But when you are asked to determine what might happen in the future or what might have happened in the future but for the injury and loss, you must use a different method of proof. First, you must decide if the event is a real and substantial possibility, rather than mere guesswork. If it is a real and substantial possibility, you must then determine the actual likelihood of its occurring.
LOSS OF FUTURE EARNINGS
116. You cannot assess loss of future earnings with absolute certainty and mathematical precision. Instead, you are essentially required to predict the future to the best of your ability based on the evidence that you have heard. The onus lies on the plaintiff to prove the loss of future income but it is not a loss which must be proven precisely, that is, in an exact dollar and cent figure. The onus is not on the plaintiff to prove on the balance of probabilities that his future earning capacity will be lost or diminished. The plaintiff need only satisfy you that there is a reasonable or substantial risk that the plaintiff will suffer a loss of future income because of the injuries sustained. The higher or more substantial the risk of the plaintiff suffering such a loss, then the higher the award she should receive. However, in arriving at your assessment under this heading you should exclude from your consideration any remote, fanciful or speculative possibilities. There are a number of contingencies and uncertain factors which you should consider in determining the prospect and potential of the plaintiff to earn in the future if the accident had not happened. Those contingencies and uncertain factors make it impossible for you to calculate precisely the future lost earnings. What you are required to do is to arrive at a lump sum figure which will fairly and reasonable compensate the plaintiff for her loss of earning capacity. It is up to you to assess that amount on the basis of the evidence.
117. In arriving at this lump sum figure, I suggest you begin by assessing a reasonable or fair estimate of the average annual loss of earnings of the plaintiff over her working life resulting from the injuries sustained in the January 1, 2011 accident. In arriving at this amount, you should consider 2017 dollars and wage rates. You should assess her earning capacity as if she had not had the accident and then you should assess her actual present earning capacity as she is now. The difference between the two amounts will represent her loss of earnings for the current year.
118. In assessing this amount you will consider the same sorts of factors as you did in assessing loss of past earning; the availability to her of employment; whether she has ability to perform a particular job having sustained the injuries; the availability of her employment on a long-term basis. In short, in light of all the evidence you are assessing the difference, if any, between her potential current earning capacity if she had not suffered the injury and her actual current earning capacity. Having made that assessment for the current year you must make it for each year of the future working life.
119. With respect to the working life of the plaintiff we have the plaintiff’s evidence that she intended to work as long as possible and at least to age 70. If you accept the plaintiff’s evidence that her plan was to retire at age 70 and due to her injuries she was required to retire at age 66, you should assess her loss ($60,000) per year from the date of trial to the date of her stated intended retirement (June 30, 2031).
120. There also exists a further claim for the difference in the annual pension earned as a result of the plaintiff’s actual retirement date (December 31, 2015) and the plaintiff’s intended retirement date (June 30, 2031). The plaintiff’s annual pension rate based on her retirement date of December 31, 2015 is $60,000.00 (see Exhibit 9). The plaintiff testified that the date that she intended to retire was June 30, 2031. The Teacher’s Pension Plan calculator which inputs various dates for retirement which is found at Exhibit 11. The last calculated retirement date inputted is June 30, 2030. The plaintiff has agreed that if you accept that she intended to retire on June 30, 2030 (at age 70) that she is restricted to claim an annual retirement income of $67,000,00. You will be required to assess her earning capacity as if she had not had the accident and then you should asses her actual present earning capacity as she is now. The difference between the two amounts ($60,000.00 and $67,000.00) will represent her loss of earnings for the future years from the date of her intended retirement (June 30, 2031) to her death (Statistics Canada Mortality rate discounted to June 30, 2043). You will need to make your best effort by assessing a reasonable or fair estimate of the average annual loss of earnings of the plaintiff over her lifetime resulting from the injuries sustained in the January 1, 2011 accident. To determine the plaintiff’s estimated date of death you are entitled to rely upon the average mortality rates as published by Statistics Canada which provides for a life expectancy of 28 years. On consent of the parties this amount has been discounted to 21 years from the date of trial. As the calculation required to be made by you commences on the alleged intended date of retirement (June 30, 2031) if you accept the plaintiff’s evidence that she intended to retire at age 70 but for the accident then the future loss of pension income is limited to the difference between the two amounts ($67,000.00 – $60,000.00 = $7,000.00) times 13 years.
121. On agreement between the parties if you determine that the plaintiff intended to retire at age 70 and due to the injuries suffered by the accident on January 1, 2011 retired early – you need only to determine the lump sum payment sought and need not concern yourselves with any adjustments for present day value.
122. Once you have arrived at the lump sum value, if any, you may consider that sum should be further discounted because of other contingencies such as layoffs, changes in employment or future illnesses or accidents that may impair the plaintiff’s ability to earn and reduce her earning capacity. If you are of the opinion that the contingencies are merely general contingencies then you should reduce the claim by a modest amount only. If you are satisfied on the evidence that the plaintiff is well protected against these contingencies then there should be no reduction whatsoever.
123. Your task is not an easy one, but on the evidence you must look into the future and arrive at a fair and probable estimate of the plaintiff’s future loss of earning capacity having regard to the contingencies that I have mentioned.
124. In summary, to calculate the lump sum award for future loss of earnings you should first arrive at a reasonable and fair annual estimate of the plaintiff’s loss, which in this case is divided between pre-retirement and post-retirement loss. After giving due consideration to all these matters you should arrive at what at least five of you find to be a fair and proper amount for this particular loss under each heading and fill in that amount where indicated at Question # 2.
FUTURE MEDICAL AND REHABILITATION EXPENSES
125. The plaintiff seeks a lump sum award to compensate for the cost of future care. The plaintiff’s position is that on the evidence the appropriate care to meet her future care needs should be provided by physiotherapy, massage therapy, Botox injections, chiropractic adjustments and naturopathic medicine. Counsel for the defendants submits that the proper care should be provided by rest and exercise.
126. Here, as in the claim for future loss of income the plaintiff need not prove on a balance of probabilities that she will require future care. She need only satisfy you that there is a real and substantial risk that she will incur expenses for future care, to be entitled to compensation under this heading.
127. The object of an award for future care is to provide the plaintiff with a sufficient lump sum of money to enable her to enjoy that environment and to have that care reasonably necessary to sustain and improve the mental and physical health of the plaintiff. Clearly compensation in this respect must not be determined on the basis of sympathy or compassion for the plight of the injured plaintiff. What is being sought is compensation not retribution. It is up to you to decide what is reasonable in the circumstances.
128. Here as with the case of loss of income you should arrive at the reasonable amount of monthly or annual cost of maintaining the plaintiff in an appropriate environment with proper care. You must determine how long this care will be required having regard to the evidence.
129. Again, following the principles outlined under loss of income, if you find that the plaintiff suffered injuries as a result of the January 1, 2011 accident and requires future care and treatment you should award an amount of funds sufficient to provide the plaintiff with adequate care for the anticipated period that you believe she will require care to a maximum date of June 30, 2043 (being the Statistics Canada mortality date). You are concerned with the probable period, she in her present condition, and anticipated state of health will require care and the anticipated cost of such care.
GENERAL DAMAGES – EXPLANATION OF PAIN AND SUFFERING
130. Your assessment of general damages should take into account the pain and suffering, if any that Shelly has experienced from the date of the injury to the present, as well as for the pain and suffering you conclude she is likely to experience in the future. In making your assessment, you should consider all distress or discomfort caused or contributed to by the event of January 1, 2011 that has been felt by Shelly Cooper in the past and is likely to be felt by her in the future.
EVIDENCE OF PAIN AND SUFFERING
131. With respect to Shelly’s complaints relating to pain, injury, and suffering from the date of the event until the date of the trial, you heard the evidence of Dr. Efraim, Dr. Best, Dr. Charles and Dr. Dakota explaining the nature of the injuries the plaintiff suffered. You also heard Shelly tell you the extent of the pain and discomfort she experienced because of these injuries.
CORROBORATIVE EVIDENCE OF PAIN AND SUFFERING
132. Other evidence from Sarah, Kelly, Karla and Janet was placed before you to support in some degree the evidence of Shelly Cooper concerning her pain and suffering.
GENERAL DAMAGES – BASIS OF AWARD FOR LOSS OF ENJOYMENT OF LIFE
133. Shelly Cooper says she has not been able to do these things to the same extent or at all because of the accident. The plaintiff also says she is unable to enjoy her work as well since the accident and was required to retire. These are matters affecting the plaintiff’s enjoyment of life. If you accept her evidence, she is entitled to be compensated for this loss of enjoyment of life as part of an award for non-pecuniary loss.
GENERAL DAMAGES – EXPLANATION OF LOSS OF ENJOYMENT OF LIFE
134. Shelly Cooper testified that before the accident she enjoyed the following activities and was able to do the following unpaid work in the home:
(2) cleaning her home and caring for the outside of her home (shovelling and lawn care);
(5) dancing, skipping, playing basketball, and enjoying all forms of physical activities;
(6) caring for her mother and playing with her grandchildren;
(7) cooking for her family and friends; and
(8) working as an elementary school principal.
PLAINTIFF’S PRE-ACCIDENT ACTIVITIES
135. If you find that Shelly Cooper suffered injuries and is entitled to damages for the negative effect of those injuries on her enjoyment of life. Thus, if you conclude that because of the event of January 1, 2011 she has been unable to enjoy, in the way that she formerly could, whatever life should offer, your award should reflect that loss.
DISTRESS MUST BE GENUINELY FELT
136. The law does not provide for recovery of damages for distress where none is felt, as, for example, where the accident victim is unconscious. However, if you are satisfied that Shelly Cooper has sustained injuries that have given her distress or discomfort, even if you consider that most people would not have felt it, or would not have felt it so severely in the circumstances, you must award damages for that pain and suffering.
GENERAL DAMAGES – DUTY TO AWARD FAIR AND REASONABLE SUM
137. When fixing a sum for damages with respect to pain, injury, and suffering, you know that damages can never be adequate in the sense that a person would undergo this pain and suffering in exchange for money. Although you cannot truly compensate for pain and suffering, you must try to assess an amount for Shelly Cooper that is moderate but is fair and reasonable and bears some reasonable relation to the loss and injury claimed, as shown in the evidence. This amount forms part of your award of damages for non-pecuniary loss.
THEORY OF THE CASE OF THE PLAINTIFF AND DEFENDANTS
138. You heard the closing addresses of Mr. Superlawyer, counsel for the plaintiff and Mr. Twistit, counsel for the defendants as to why the plaintiff or the defendant ought to succeed and to what extent. Prior to delivery of this Charge I requested that each counsel provide me with a summary of the theory of their case. I will now read aloud the parties’ theories to you and will attach summaries to this jury charge as Schedule A (defendants) and Schedule B (plaintiff) so that you may refer to them if you so desire.
BURDEN OF PROOF
139. When considering the answers to the Questions posed of you I remind you to keep in mind that the burden of proof relative to the Questions as outlined earlier in this charge.
140. You have before you a Question Sheet which has been agreed upon by counsel for the plaintiff and the defendant. On this Question Sheet you are asked to answer certain questions so that your verdict may be translated into a judgment. I will outline your respective duties for the answer to each of the questions.
141. The first question that you must answer is whether the January 1, 2011 accident caused injury to the plaintiff. If your answer is “no” your deliberations are over. If your answer is “yes” you proceed to the next question which involves a series of questions concerning various types of damages.
142. As noted the remaining questions deal with damages. When fixing an amount for these damages (if any), you do not need to worry about any adjustments or deductions. All we need from you is your assessment of the reasonable amounts that should be awarded the plaintiff under the heads of the damages I discussed with you. You should make this assessment on a 100% basis.
GENERAL DAMAGES – PAIN, INJURY, SUFFERING, AND LOSS OF ENJOYMENT OF LIFE
143. If you determine that the plaintiff is entitled to an award for general damages for pain, injury, suffering, and loss of enjoyment of life from the date of the accident until her estimated time of recovery, you should fill in the amount you choose to award under this head.
PAST LOSS OF INCOME
144. The next question relates to the alleged past loss of income suffered by the plaintiff to the date of trial. Again, you should fill in any sum you choose to award under this head of damages consistent with the evidence and instructions I gave you.
FUTURE LOSS OF INCOME
145. The next question relates to the alleged future loss of income of the plaintiff. This question is divided into two parts – the first for loss of income from the date of trial to the date of the alleged intended retirement date. The second part is for loss of income from the alleged intended retirement date to the plaintiff’s death. Should you decide that the plaintiff is entitled to compensation for this future loss, you should insert a figure that is reasonable in accordance with the evidence and my instructions in the spaces provided.
PAST MEDICAL AND REHABILITATION EXPENSES
146. This question requires that you fill in an amount with respect to any past medical and rehabilitation expenses that you find were incurred by the plaintiff, providing these were adequately proven. In that space you should put an appropriate dollar amount consistent with the evidence and instructions I gave you remembering that you make no deductions for any benefits received.
FUTURE MEDICAL AND REHABILITATION EXPENSES
147. This question requires that you fill in an amount with respect to any future medical and rehabilitation expenses that you find may be incurred by the plaintiff, providing these were reasonably proven. In that space you should put an appropriate dollar amount consistent with the evidence and instructions I gave you remembering that you make no deductions for any benefits received.
TOTALING THE DAMAGES
148. Your last responsibility will be to add up all the amounts that you have chosen to award the plaintiff for the damages she allegedly suffered and place this figure in the space on the question form marked “total”.
SIGNING THE QUESTION SHEET
149. Your foreperson should then sign the Question Sheet in the space provided and date it. Once this is done, you can inform the sheriff that you are ready to return to the courtroom and deliver your verdict. Upon your return you will be asked to read out the answers to the questions and the Question Sheet will then be filed as an exhibit in these proceedings.
JURORS DUTY TO CONSULT
150. It is your duty to consult with one another and to reach a just verdict according to the law and the evidence. In doing so, you must be true to your oath, try the case upon the evidence, and disregard any outside influence or prejudices you may have.
RESPONSIBILITY OF THE FOREPERSON
151. It is your duty to appoint a foreperson to preside and assist you in the orderly discussion of the issues. Each of you should have the opportunity of expressing your own points of view without being unnecessarily repetitive. When you return to the jury room your first order of business will be to appoint a foreperson.
152. When you are discussing the issues you should, of course, listen attentively to the arguments of your fellow jurors. Approach your duties in a rational way and put forward your own points of view in a calm and reasonable manner. Each of you must make your own decision whether Shelly Cooper is entitled to succeed and to what extent. You should do so only after consideration of the evidence with your fellow jurors, and you should not hesitate to change your mind when you are convinced that you are wrong.
DISCUSSING THE EVIDENCE AND THE LAW
153. There is no fixed routine you must follow in arriving at your verdict. Here are some suggestions. First, review the evidence. List the particular pieces of evidence next to the applicable element or ingredient of the claim or the defence. Second, determine the facts you find from that evidence. List those facts. Third, apply the law that I gave you to those facts and decide whether the plaintiff or the defendant should succeed in whole or in part.
154. You may take a vote at any time. However, if you spend a reasonable amount of time considering the evidence and the law and listening to each other’s opinions, you will probably feel more confident and satisfied with your eventual verdict than if you rush things. You may vote by raising your hand, by a written ballot, or by a voice ballot. If you cannot reach a verdict after trying many times to do so, ask me for advice on how to proceed.
REQUIRE UNANIMOUS VERDICT OR AGREEMENT OF 5 OUT OF 6 JURORS FOR EVERY ANSWER/VERDICT
155. You need to understand and remember that you need not be unanimous in any verdict you see fit to return, however, each answer or verdict requires the agreement of 5 out of 6 jurors. Further, it is not necessary that the same 5 out of 6 jurors agree on each answer. However, at least 5 out of 6 jurors must agree on each answer/verdict provided.
STANDING TO CONFIRM THE VERDICT
156. Following the delivery of the verdict by your foreperson in this courtroom, the registrar will ask you to stand and confirm that your verdict unanimous or reached by 5 out of 6 jurors.
157. In unusual circumstances, counsel for either side may then ask that you be polled individually. If I agree with this request, each of you will then be called by name and asked to stand one after the other in order to confirm the verdict reported by your foreperson.
158. It may be necessary for me to call you back and give you further instructions on the law after I hear the submissions of counsel at the end of my charge. However, at this stage I propose to inquire from counsel whether they have any comments on the evidence that I related to you during my instructions. This will do away with the necessity of asking you to return if there is a dispute over the evidence as opposed to the law. The purpose is to correct any minor errors, such as the date of a particular event, I might have made when discussing the evidence, and not to invite re-argument.
COMMENTS BY COUNSEL FOR THE PLAINTIFF
159. Counsel for the plaintiff, do you have any comments on any of the evidence that I may have failed to emphasize or I may have inadvertently misstated when mentioning it to the jury?
COMMENTS BY DEFENCE COUNSEL
160. Counsel for the defendants, do you have any comments on any of the evidence that I may have failed to emphasize or I may have inadvertently misstated when mentioning it to the jury?
161. Members of the jury, you heard the helpful comments of counsel for the plaintiff and counsel for the defendant with respect to the evidence. As I told you earlier in my charge, it is your memory of the evidence that counts.
CHOOSE FOREPERSON AND AWAIT FURTHER INSTRUCTIONS
162. In a few minutes you may retire to the jury room. However, do not commence your deliberations until the sheriff tells you to begin instead chose your foreperson. As soon as you leave the courtroom I must ask both counsel if they have any submissions to make with respect to my charge on the law.
ALTERING OR QUALIFYING INSTRUCTIONS
163. It may be that both or either of them will want me to give you some additional instructions or to alter or qualify what I have already said. If I agree, I will ask you to return to the courtroom for this purpose. Otherwise, I will tell the sheriff to inform you that you may begin your deliberations.
ADDITIONAL EXPLANATIONS OF THE LAW
164. If at any time after you begin to deliberate you should encounter difficulty with respect to the law, just give a note to the sheriff. (He/She) will then deliver it to me. After that we will reassemble the court and I will try to help you out by answering your questions.
NO TRANSCRIPTS AVAILABLE
165. The evidence in this trial was recorded by the court clerk. However, there is no typewritten transcript available. If there is any conflict among you as to what was said by a witness, the only safe way to resolve it is to have the court clerk play the evidence back to you.
PROCEDURE FOR HEARING TESTIMONY
166. Should this dispute arise, just hand a note to the sheriff setting out the testimony you want to have played back. (He/She) will pass it on to me. We will then reassemble the court for the purpose of playing back the evidence.
CAUTION REGARDING PLAYBACK OF TESTIMONY
167. Because it is dangerous to select only a portion of the evidence of the testimony of a witness, the usual practice is to play back all of the testimony of a specific witness, including the examination-in-chief, the cross-examination, and any re-examination. In saying this I do not want to discourage you from any request that evidence be played back; however, it can be a time-consuming chore for everyone. In most cases, your verdict will more likely be founded upon a consideration of all the evidence rather than by concentrating on one solitary piece of evidence.
168. When you retire to the jury room, you may take with you the exhibits in this action.
ANSWERS TO QUESTIONS
160. You must also take with you the Question Sheet. These questions are to be completed by your foreperson. When you return to the courtroom after reaching a verdict, the registrar will ask the foreperson to read out the answers to the questions. The Question Sheet will become an exhibit at this trial.
170. You may now retire to consider your verdict but remember first chose your foreperson and then wait for further instructions before you begin your deliberations.