2008 BCCA 430 Ramcharitar v. Gill

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	*Ramcharitar v. Gill,*
	2008 BCCA 430

Date: 20081103

Docket: CA034986

Between:

Neil Ramcharitar

Appellant

(Plaintiff)

And

Lakhbir Gill

Respondent

(Defendant)

Before:	The Honourable Madam Justice Ryan
	The Honourable Mr. Justice Lowry
	The Honourable Madam Justice Neilson

R. J. Dumonceaux	Counsel for the Appellant
D. A. Farquhar, Q.C.	Counsel for the Respondent
Place and Date of Hearing:	Victoria, British Columbia
September 26, 2008
Place and Date of Judgment:	Vancouver, British Columbia
November 3, 2008

Written Reasons by:

The Honourable Mr. Justice Lowry

Concurred in by:

The Honourable Madam Justice Ryan

The Honourable Madam Justice Neilson

Reasons for Judgment of the Honourable Mr. Justice Lowry:

[1] This action was tried before Mr. Justice Macaulay sitting with a jury for a period of five weeks in 2007. The plaintiff, Neil Ramcharitar, sought an award of damages for injuries he claimed he suffered in a motor vehicle accident six years earlier. The car he was driving was struck from behind, sustaining damage estimated to cost $533.53 to repair. The injuries for which he sought damages were alleged to be of two kinds: a closed head injury and a whiplash type of soft tissue injury to his neck and back. He maintained that, as a consequence of the injuries he suffered, his cognitive function deteriorated to the point where he lost his employment and his home; he ultimately became paranoid, and began hearing voices and acting strangely. He was diagnosed to be suffering from psychosis. The jury found the accident was caused by the negligence of the defendant, Lakhbir Gill, but it also found Mr. Gill’s negligence did not cause any injury to Mr. Ramcharitar. It awarded no damages and the action was dismissed.

[2] Mr. Ramcharitar contends there was a miscarriage of justice which he attributes to three aspects of the trial. He says expert evidence wrongly tendered by the defence was so prejudicial the judge was required to declare a mistrial, discharge the jury, and afford Mr. Ramcharitar the opportunity to have the trial completed by the judge sitting alone. He says improper prejudicial statements made by defence counsel in his address to the jury should not have been permitted by the judge. Finally, he says the judge’s instructions to the jury were deficient and the jury’s verdict was perverse. Mr. Ramcharitar seeks a new trial.

The expert testimony

[3] On the first day of the trial, Mr. Ramcharitar amended his statement of claim to allege that in addition to having suffered a seizure disorder, traumatic brain injury, and depression, all as a consequence of a mild concussion sustained in the accident, he was also suffering post-traumatic psychosis. He had sought, but had withdrawn, the same amendment six months earlier. The defence was then put in a position, at the beginning of the trial, of having to find and call what evidence it could to meet the allegation that was the subject of the amendment. Mr. Ramcharitar had an admitted history of using anabolic steroids, although he maintained he had not used steroids at all at any time after the accident. The theory of the defence case on the point was any psychosis he suffered was attributable to the use, or the withdrawal from use, of anabolic steroids or other drug combinations. The defence did not accept Mr. Ramcharitar had not used steroids in the time elapsed since the accident.

[4] The defence obtained and delivered a written statement of an endocrinologist, Dr. Lucretia van den Berg, setting out her opinion concerning the cause of the alleged psychosis, which it sought to introduce as expert evidence. The doctor had seen Mr. Ramcharitar once before the accident, in 1998, and had reviewed some of his pre- and post-accident records. The judge ruled the statement inadmissible for various reasons, but he permitted the witness to testify subject to limiting the scope of her testimony. He said she would be permitted to express an opinion as to whether the use, or withdrawal from use, of anabolic steroids may cause psychosis. He said she would also be permitted to state whether such use or withdrawal may have caused psychosis in Mr. Ramcharitar’s case, providing her opinion was based on assumptions for which there was admissible evidence of Mr. Ramcharitar’s actual steroid use before and after the accident. (At that point late in the trial, no further evidence of his use of steroids was to be expected.)

[5] After Dr. van den Berg completed her testimony, which substantially supported the defence theory of the cause of any psychosis from which Mr. Ramcharitar suffered, his counsel applied under Rule 41(7) of the Rules of Court to have the jury discharged on the ground the defence was guilty of misconduct because the assumptions it put to the witness went beyond the evidence. Rule 41(7) provides:

(7) Where, by reason of the misconduct of a party or the party's counsel, a trial with a jury would be retried, the court, with the consent of all parties adverse in interest to the party whose conduct, or whose counsel's conduct is complained of, may continue the trial without a jury.

[6] The judge agreed some of the witness’s opinion was based on assumptions that were not supported by the evidence. In his Oral Ruling re Application to Discharge Jury (20 March 2007), Victoria No. 01-2332 (B.C.S.C.), he said:

[8] Counsel for the defendant put a number of assumptions to the doctor, several of which were qualified as relating to the period since 2001. Included was an assumption that the plaintiff has reported the use of anabolic steroids annually. Taken in context, the assumption must mean continuing use until the present.

[11] In reaching my conclusion, I have considered the admissible evidence of elevated CPK levels, including in late 2006 and early 2007, along with the doctor’s opinion that is unexplained other than by anabolic steroid use. There is some other circumstantial evidence that might support an inference of steroid use, but it is minimal. The assumption regarding admitted, ongoing anabolic steroid use easily overwhelmed the other assumptions put to the expert.

[7] The judge reviewed the evidence on the point. He concluded there was none that would support the assumption of continued steroid use after the accident, and expressed the view the jury would have to be discharged:

[15] There is no other evidence of any significance on the issue of admitting ongoing anabolic steroid use since the accident that occurred six years ago.

[16] Based on the assumptions put to her, the endocrinologist opined that the use or withdrawal from steroid use may have caused the psychosis in the present case. Later, counsel for the defendant asked the doctor to respond to the same question without the assumption of reported use, but did not do so in any meaningful or helpful way. In essence, the defendant asked the doctor to assume ongoing steroid use and then to point to other factors, such as elevated CPK readings, which may be consistent with steroid use. The assumption of ongoing steroid use was so interwoven and fundamental that a jury cannot be expected to back it out of the equation when deciding what weight to give to the doctor's evidence. It is likely that the jury will abdicate its responsibility and simply rely on the doctor who is required to accept the assumptions given.

[17] This creates a significant unfairness for the plaintiff, who is entitled to a decision bottomed on admissible evidence.

[18] I have taken into account that the defendant wants the issues in this case decided by a jury and that we are near the end of the evidence with only one other witness to be called. Nonetheless, the risk of an inappropriate verdict is, in my reluctant view, too great.

[19] The jury will be discharged.

[20] I will hear submissions whether I should continue the trial alone if the defendant is not agreeable.

[8] However, at that point the defence asked the judge to reconsider. After hearing further submissions, he concluded any prejudice arising out of the assumption relating to Mr. Ramcharitar’s use of anabolic steroids after the accident could be satisfactorily ameliorated with a very specific direction to the jury. He then instructed the jury as follows:

THE COURT: Members of the jury, I'm going to give you a direction now that relates to the evidence of Dr. van den Berg. I will repeat it to you in my final charge at the end of the trial.

You will recall that counsel for the defendant put a list of assumptions to the doctor and asked her whether, based on those assumptions, the use or withdrawal of use of anabolic steroids may have caused the plaintiff's psychosis.

You are not to make any use of the doctor's evidence in response to that question.

This is because the central assumption of ongoing admitted anabolic steroid use was not established on the evidence that you have heard at this trial. Accordingly, you must ignore the doctor's evidence respecting the use of anabolic steroids causing the plaintiff's psychosis.

[9] The judge repeated his instruction during the course of his charge as he said he would. Thus, the members of the jury were told twice to disregard Dr. van den Berg’s opinion the use of anabolic steroids may have caused any psychosis which Mr. Ramcharitar suffered.

[10] Mr. Ramcharitar maintains that the judge, having initially concluded the jury should be discharged, erred in two ways: first, in asking the defence (which applied for the jury), instead of the plaintiff, whether he could continue the trial sitting as a judge alone as contemplated by the Rule; and, second, in reversing his decision to discharge the jury.

[11] I consider the first complaint to be entirely without merit. When he was asked to reconsider discharging the jury, the judge had only concluded the jury would have to be discharged because of the opinion expressed by Dr. van den Berg which the defence adduced. The judge had not then determined whether the defence was guilty of any misconduct which would have precluded it – the party which had sought the jury – from being afforded the choice of having the trial continue to conclusion without the jury. The judge said only he would hear submissions as to whether he should continue if the defence was not agreeable. He then reconsidered his conclusion and effectively dismissed the plaintiff’s Rule 41(7) application.

[12] Thus the judge did not find any misconduct on the part of the defence and it is difficult to see how he could have done so. Defence counsel sought direction as to the assumptions he could put to the witness and the judge said he was leaving it to counsel to determine the proper factual basis for the opinion to be proffered. When the plaintiff’s counsel took exception to the assumptions being put to the witness, the judge said that would be a matter for submissions at the end of the day. Indeed, earlier, on March 5, when ruling on Mr. Ramcharitar being examined on his use of steroids, the judge stated “[t]here is some evidence of steroid use post-accident”. In any event, the judge did not reach the stage of putting Mr. Ramcharitar to his election. He was persuaded to reconsider his initial ruling made in the course of the trial and immediately changed his mind.

[13] With respect to the second complaint, Mr. Ramcharitar simply argues the judge should not have changed his mind: his initial view no instruction could adequately overcome the prejudicial effect of the doctor’s opinion, which was based on the assumption of a fact unsupported by the evidence, was the correct assessment. Reliance is placed on Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, [1997] 1 S.C.R. 1092, 145 D.L.R. (4th) 193, for the proposition that, where a judge concludes a prejudice is so severe it cannot be dispelled by instruction, the judge may discharge the jury. In Hamstra, the Supreme Court decided the longstanding rule that the mention of insurance in a jury trial required the jury to be discharged, was outdated. The proper approach was stated as follows:

[23] If the trial judge determines that the reference to the defendant's being insured is likely to result in prejudice, the jury should not be discharged automatically. The jury should only be discharged if the trial judge considers that the prejudice cannot be cured. In most cases the jury will be able, with proper instructions from the trial judge, to disregard the fact of insurance in determining liability and assessing damages.

[14] Mr. Ramcharitar argues the doctor’s testimony was highly prejudicial because it went directly to his use of anabolic steroids after the accident and reflected on his credibility, which the defence challenged throughout the trial. The testimony, though ruled inadmissible, is said to have provided the foundation for the defence theory regarding Mr. Ramcharitar’s use of steroids being linked to his alleged psychosis. It is said no instruction could overcome the prejudice.

[15] In deciding not to discharge the jury, the judge was exercising his discretion. He was in a much better position to do so than is this Court. The approach to be taken to assessing the decision he made is stated in Hamstra as follows:

[26] It has long been established that, absent an error of law, an appellate court should not interfere with the exercise by a trial judge of his or her discretion in the conduct of a trial. This applies with equal force to a decision to retain or discharge the jury. It cannot be overstated that the trial judge is in the best position to determine how to exercise this discretion.

[16] It is not suggested any error of law was made here. That being the case, I see no basis on which this Court could interfere with the decision the judge made not to discharge the jury.

Counsel’s statements

[17] Mr. Ramcharitar contends that, during the course of his closing address to the jury, defence counsel (who is not counsel on this appeal) misstated the evidence, referred to issues to which the evidence did not give rise and to statements made that were not in evidence, urged the jury to draw improper inferences, and challenged the integrity of expert witnesses with no sound basis on which to do so. More than a dozen statements are cited as being improper and prejudicial.

[18] Defence counsel’s address to the jury was far from conventional. Indeed, it was not really a submission. He began by telling the jury his address was the “scariest” part of his job because, until he had heard the plaintiff’s case argued, he did not know where to start. The theory of the defence was Mr. Ramcharitar had not injured his head in the accident such that the troubled course his life had taken in the intervening six years was not caused by the accident. But counsel made little attempt to develop the defence case with an organized argument in support; rather he was content to do little more than raise questions he suggested the jury should ask themselves about the presentation of the plaintiff’s case. This led him to suggest to the jury significance was to be attached to evidence that was not adduced, and to cast what may be misplaced aspersions on the motivations of medical practitioners who were called to support Mr. Ramcharitar’s case as well as on those of one of the solicitors who had represented him for a period of time in pursuing his claim. When referring to some dated medical reports of expert witnesses called by the defence, counsel actually told the jury they knew more about Mr. Ramcharitar than did the doctors, with the possible exception of his family doctor, and they should draw their own conclusions (without saying what conclusions) if the contents of the medical reports did not “sound right” to them. In so doing, counsel appears to have been wrongly suggesting it was open to the jury to abandon its duty to properly examine the medical opinion in question and to substitute for it an opinion of their own making for which there was no basis in the evidence.

[19] I understand Mr. Ramcharitar to be particularly concerned about defence counsel having suggested the jury attach significance in the nature of an adverse inference to the evidentiary absence of more than half a dozen doctors and a psychologist, who Mr. Ramcharitar had seen at one time or another over the years since the accident, from whom no medical reports had been obtained and who were not called to testify.

[20] Buksh v. Miles, 2008 BCCA 318, is a recent decision where this Court intervened to order a new trial in view of instruction on drawing adverse inferences having been given to a jury. There, counsel for both parties argued adverse inferences should be drawn from the failure to call doctors on both sides who had examined one of the two plaintiffs or treated that plaintiff in some way to a limited degree. In reply, the plaintiffs’ counsel was permitted to proffer his own “evidentiary” explanations to the jury as to why certain of the doctors were not called. A new trial was ordered, not because the judge’s instruction following counsels’ urging adverse inferences on the jury was in any way flawed, but because it was given without the judge having first determined whether, in the circumstances, a reasonable juror could draw the inferences counsel sought (paras. 31-35).

[21] No similar instruction was given here. The most that might be said is the discussion in Buksh does appear to raise a question of whether it was open to defence counsel to suggest to the jury the absence of the evidence in this case was significant.

[22] I consider there to be little purpose to be served in setting out verbatim all of the impugned statements defence counsel made because, while some may have been cause for concern, Mr. Ramcharitar’s counsel took no exception and did not ask the judge to provide any direction to the jury in respect of any aspect of the defence address. Indeed, although he took the opportunity to make submissions about the contents of the charge the morning after the addresses had been completed, he said absolutely nothing to the judge about any concern he had as to whether defence counsel’s statements were even improper, let alone prejudicial. That may be because he believed that, in his address to the jury in reply, he largely ameliorated what might be said to be the more troubling aspects of the statements made by defence counsel. It may also be because he regarded what are now said to be improper statements to have been largely inconsequential in the context of the five-week trial.

[23] This Court will rarely intervene in a civil case where complaints in the nature of those raised for the first time here were not raised at trial. In Brophy v. Hutchinson, 2003 BCCA 21, 9 B.C.L.R. (4th) 46, the Chief Justice explained:

[52] In other words, the trial judge is in the best position to observe the effect of counsel’s statements on the jurors, and to fashion an appropriate remedy for any transgressions. Where no objection is taken, the assumption is that the effect of any transgression could not have been seriously misleading or unfair and there would be no reason for suspecting injustice.

[53] It is, however, recognized that there may be exceptional circumstances which merit a new trial, despite a failure on the part of counsel to object to an address: Dale v. Toronto Railway (1915), 24 D.L.R. 413 (Ont. C.A.). In R. v. Jacquard, [1997] 1 S.C.R. 314 (S.C.C.), the court declined to adopt a strict rule that the failure to object to a jury charge invariably waives the right of appeal. Lamer, C.J.C. noted: “Such a rule might also unequivocally prejudice an accused’s right of appeal in cases where counsel is inexperienced with jury trials”. [Emphasis of Finch C.J.B.C.]

[54] In Basra v. Gill (1994), 99 B.C.L.R. (2d) 9 (B.C.C.A.) the court recognized that where there is a “substantial wrong or miscarriage of justice” a new trial may be required, even in the absence of an objection.

[55] In my opinion, failure of counsel to make a timely objection to irregular or improper proceedings at trial is and must remain, an important consideration in determining whether there has been a miscarriage of justice. That consideration, however, is to be weighed against the nature and character of the irregularity or impropriety complained of.

[24] The nature of the statements now complained of does not raise this to an exceptional case that would justify ordering a new trial. The judge, who was in the best position to observe the effect of what defence counsel said, made no comment at all. Mr. Ramcharitar’s counsel said nothing other than what he said in reply. If he had sought it, some instruction might have been given. It was apparently thought to be unnecessary.

The instructions and the verdict

[25] Mr. Ramcharitar contends the judge’s instructions on causation, the weight to be given to the expert evidence of Dr. van den Berg, and the questions posed for the jury to answer were all deficient and led the jury to a verdict which is perverse.

[26] I am unable to see why the judge had to say more about causation than he did. It is said the jury needed to be told to consider whether the accident was one cause, as opposed to the sole cause, of Mr. Ramcharitar’s injuries, but this was not a case where it was contended there were contributing causes. The defence maintained he had not injured his head in the accident at all and contended his unusual behaviour was attributable to the use of anabolic steroids. I am also unable to see what further instruction ought to have been given about Dr. van den Berg’s testimony. The judge is said to have confused the jury by telling them to consider all of her evidence in the same way as the evidence of the other experts, subject to a direction to ignore part of what she had said. The judge explained why the jury was to ignore part of the witness’s evidence. It cannot be suggested the jury misunderstood the use they could make of it. Finally, I am unable to accept Mr. Ramcharitar’s contention the questions were unclear and were predicated on his having suffered some injury in the accident, leaving the jury to determine only the amount of his damages. The jury was asked whether the defendant’s negligence caused or contributed to the plaintiff’s damages – yes or no – and they answered in the negative. There is no basis on which it can be said the questions were misunderstood.

[27] In any event, the judge’s charge was given to counsel in writing. They had overnight to consider it and the instructions the judge proposed to give the jury. As I have said, Mr. Ramcharitar’s counsel made submissions in seeking changes to the instructions the judge proposed to give the jury. He made submissions on the questions as well. He did not raise any of the concerns raised now before or after the judge gave his instructions. They are not the kind of concerns that would normally support the ordering of a new trial when they were not raised until now.

[28] Mr. Ramcharitar then contends the verdict is perverse because there was, on the evidence, no question that even if he suffered no head injury in the accident, he did suffer soft tissue injury to his neck and back. Indeed, he says that was never in issue in the trial and defence counsel does appear to have acknowledged that to have been the case in a passing comment made in the course of his address to the jury, although there was no formal admission and the jury was of course not bound by what he said.

[29] Some support for this contention might be said to be found in what appears to have been stated as obiter in Buksh where an alternative ground for ordering a new trial was raised. There the jury responded “no” to separate questions whether either of the two plaintiffs sustained personal injury, and the action was dismissed. But, on appeal to this Court, it was decided the evidence established the female plaintiff had suffered some soft tissue injury to her lower back quite apart from other injury she claimed to have suffered. Significance was attached to statements by her family doctor and the doctor who conducted an independent medical examination that she had in fact been injured. The verdict was on that basis alone said to be perverse. It is not clear from the decision what the defendant was relying upon to impugn the plaintiff’s credibility concerning her injuries, but I do not consider it to have been determined that whenever a plaintiff adduces even unchallenged medical evidence of injury, it will always be perverse for a jury to conclude no injury was suffered. It must depend on the nature of the injury and quality of the evidence in each case, particularly where the symptoms are based on the plaintiff’s self report.

[30] The principle that governs when a verdict is contended to be perverse is well established. It is as stated in McCannell v. McLean, [1937] S.C.R. 341 at 343, [1937] 2 D.L.R. 639, by Duff C.J.C.:

It seems desirable, however, to add a word or two in respect of the principle on which this Court acts in setting aside the verdict of a jury, as against the weight of evidence, with a view to granting a new trial or giving judgment in favour of one of the parties.

The principle has been laid down in many judgments of this Court to this effect, that the verdict of a jury will not be set aside as against the weight of evidence unless it is so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it. That is the principle on which this Court has acted for at least thirty years to my personal knowledge and it has been stated with varying terminology in judgments reported and unreported.

[31] Here, the jury had to decide whether on a balance of probabilities the plaintiff was to be believed when he said he suffered injury in the accident: injury to his head and to his neck and back. Having decided Mr. Ramcharitar had not injured his head in the accident (i.e., his head did not impact the steering wheel rendering him unconscious for several minutes as he testified) the question becomes whether it was open to the jury to also decide he had not injured his neck and back, the symptoms of which were entirely a matter of his self report to those who attended to him at the scene of the accident, the staff at the hospital where he was taken, his family doctor, his family, and ultimately the jury. Once the jury decided Mr. Ramcharitar had not told them the truth about injuring his head, they had sound reason to be suspect about his testimony as a whole.

[32] The damage to Mr. Ramcharitar’s vehicle may have been viewed as suggesting the impact was not severe. The paramedic at the scene examined his head, neck, and back recording “no obvious injury”. The emergency physician at the hospital where he was examined and released testified he found no more than a slight tenderness in Mr. Ramcharitar’s upper back and thoracic spine area with a slight numbness in two fingers. He concluded some left para scapular strain had been suffered and Mr. Ramcharitar was released in a soft collar and sling. The physician’s evidence is to be contrasted with Mr. Ramcharitar’s testimony at trial to the effect he was experiencing severe muscle spasm across his back. It is also to be contrasted with what he told his family doctor when he first went to see him five days after the accident. He described his symptoms immediately following the accident as consisting of a large number of complaints including a loss of consciousness and muscle spasms to various parts of his body.

[33] Mr. Ramcharitar’s family doctor recorded what could be said to be only one objective finding of soft tissue injury: muscle spasm to Mr. Ramcharitar’s cervical region on palpation, but it is not insignificant that nine days before the accident he was treated by a chiropractor for pain to his neck and ribs. At trial, the doctor did say he observed injury to Mr. Ramcharitar’s head (purportedly from an impact with the steering wheel) which he described as a swollen area that was tender and a bit discoloured extending perhaps eight inches over the forehead. But, at the time of Mr. Ramcharitar’s initial attendance at his office after the accident, the doctor made no notation of this seemingly important observation. He suggested he had made a drawing in his clinical notes, but it became apparent what he had was a drawing prepared by Mr. Ramcharitar. The doctor testified he had determined from the hospital Mr. Ramcharitar had been unconscious immediately following the accident, but conceded on cross-examination, when presented with copies of the hospital records, they indicated “Zero LOC”, to the effect there was no loss of consciousness.

[34] Given the conflict not only in Mr. Ramcharitar’s testimony but in his family doctor’s testimony as well, I do not consider it can be said the jury’s verdict was so unreasonable and plainly unjust as to be perverse. Mr. Ramcharitar’s case for damages for soft tissue injury to his neck and back was of necessity predicated on his self report. It was open to the jury to find he was not credible and they were then entitled to conclude he had not discharged his onus of proving what, if any, injury in particular he had suffered as a consequence of the accident.

Disposition

[35] I would dismiss the appeal.

“The Honourable Mr. Justice Lowry”

I agree:

“The Honourable Madam Justice Ryan”

I agree:

“The Honourable Madam Justice Neilson”