ICBC appeal wins new trial of $12.5-million award to North Van woman for three car accidents
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VANCOUVER - A new trial has been ordered for a North Vancouver woman who won a $12.5-million award for three car accidents.
The Insurance Corp. of B.C. had requested last year that the huge jury award to Micheline Ciolli be tossed out, but the request was rejected by the trial judge, B.C. Supreme Court Justice Linda Loo.
ICBC, which earlier said the jury award appeared to be the largest personal injury award ever handed down in B.C., successfully appealed.
In a ruling released today, three judges of the B.C. Court of Appeal ordered a new trial after concluding the jury's award was wholly out of proportion to Ciolli's losses.
"We're obviously pleased by the court's decision and await the outcome of the new trial," ICBC spokesman Mark Jan Vrem said Thursday.
The appeal court also found that the trial judge's summary of the evidence was not even-handed.
The judgment added that the trial judge's instructions "failed to provide the jury with the necessary tools for assessing present values and contingent future events; and that the awards for non-pecuniary loss, loss of income-earning capacity and future care costs were inordinately high."
The court pointed out the $6.5-million awarded by the jury for non-pecuniary loss "may be the largest assessment of damages for such loss in Canadian history."
The current "rough upper limit" for such an award is $327,000, said the judgment written by B.C. Court of Appeal Justice Mary Newbury.
The jury awarded Ciolli a total of $12.45 million for serious but not catastrophic soft tissue injuries suffered in three car accidents that occurred after an unrelated accident - a bookcase fell on her at the PNE in September 2003.
After the PNE accident, she was diagnosed as having sustained a mild concussion and soft-tissue injuries to her head and neck, and experienced symptoms of fatigue, headaches, nausea, and nervousness. In May 2006, Ciolli underwent surgery to alleviate a disc herniation stemming from the PNE accident.
After surgery, Ciolli was injured in three motor vehicle accidents between December 2006 and April 2008.
ICBC's position at trial was that the accidents were relatively minor: the first accident involved her vehicle being hit on the driver's side by a car exiting a parking lot and the other two involved Ciolli being rear-ended by other drivers in parking lots.
ICBC admitted liability but the main issue at trial was "causation" - whether the three accidents caused some or all of Ciolli's continuing difficulties.
After a five-day trial, the jury attributed 5 per cent of the $12.5 million in damages to the first accident, 55 per cent to the second and 40 per cent to the third.
Ciolli, who is in her 40s, is married with five children. Until 1999, she had been a successful real estate agent but that year she and her husband had bought a "sexual health and wellness company," which was described as a successful enterprise that allowed Ms. Ciolli to withdraw up to $350,000 each year - an amount that she received free of income tax because she is a status first nations person.
