Court of Appeal: Trial Judge’s “Unorthodox” Charge to Jury “Got the Job Done”

Deanna Zurek suffered soft tissue injuries in a rear-end collision.  After a trial, a jury awarded her non-pecuniary general damages, damages for past loss of income, and damages for future care costs.  However, it awarded her no damages for future loss of income.  Ms. Zurek appealed, citing the trial judge’s erroneous charge to the jury as the reason for the jury’s failure to award damages for future income loss.

The Court of Appeal released its decision in Zurek v. Ferris on November 5, 2010.  The Court agreed with Ms. Zurek that  many of the trial judge’s comments to the jury  were unnecessary and “not germane to the issues the jury had to decide.”  It characterized the charge as “unorthodox.”  Despite these comments, the Court held that the charge as a whole was fair.  It cited the following examples of the trial judge’s attempts to have the jury resolve the issues using relevant evidence:

  • “You try and be fair and use your common sense to compensate the plaintiff for the injuries she sustained, the hurt that she got as a result of the negligence because Ferris drove into the back of her car.”
  • “You don’t have to find great big bumps and blood and cuts to have a real whiplash.”
  • “… [I]t’s hard to determine whether it’s faking or whether it’s real or whether it’s embellished.  But I’ll tell you something, she all of a sudden went for treatment after the accident – something happened.  Things changed, think about that.”
  • “Sit and pick a fair figure, using your common sense, that will properly compensate her for her lost future wages caused by [the] accident…”
  • “… [S]he’s entitled to be put right back in the position she was in before, as best we can, so she doesn’t have to walk around with a neck brace and a cane, trying to wash dishes.  She doesn’t have to do that, so we’re trying to put her back.”

The Court noted that there was sufficient evidence presented to the jury to allow it to reach the decison that it did.   It also noted that Ms. Zurek’s lawyer made few objections to the charge at trial.  Ultimately, the Court felt that while the charge was not perfect “it got the job done.”  It dismissed Ms. Zurek’s appeal.

The important takeaway message for counsel is to make detailed objections at trial to a judge’s charge.   This is because the Court of Appeal will measure the significance of an error in a charge, in part, by the response of counsel to the error at trial.  Presumably, the policy reason behind this approach is to encourage counsel to take every step possible to resolve such issues at trial by getting correcting instructions, avoiding the need for an appeal altogether.

Patrick Brown


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