Supreme Court Judgments

Supreme Court of Canada

Draper v. Jacklyn et al., [1970] S.C.R. 92

Date: 1969-10-07

Robert David Draper (Plaintiff) Appellant;

and

Lloyd Jacklyn

and

Barry Jacklyn (Defendants) Respondents.

1969: June 11; 1969: October 7.

Present: Judson, Ritchie, Hall, Spence and Pigeon JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Evidence—Motor vehicle accident victim treated surgically—Kirschner wires inserted in fractured jaw protruding through cheek—Photographs of victim’s face taken during treatment period—Trial judge permitting submission of photographs to jury—Whether photographs properly admitted.

Damages—Injuries sustained by motor vehicle accident victim—Award by jury—No justification for any interference with award.

The plaintiff, who sustained injuries as the result of a motor vehicle accident, was operated on and fractures of his jaw and cheekbone as well as various lacerations were treated surgically. The treatment of the fractures of the jaw consisted of the insertion of Kirschner wires and these wires protruded from the left cheek. The plaintiff was discharged from hospital eight days after the accident, and the Kirschner wires remained in his cheek for about four weeks.

At trial, the jury awarded the plaintiff general damages of $15,000. The Court of Appeal allowed the defendant’s appeal and directed a new trial limited to the quantum of damages only. The conclusion that there should be a new trial was based solely upon the fact that the trial judge had permitted the submission to the jury of two photographs of the plaintiff which were taken during the period immediately following his discharge from hospital. The Court of Appeal disagreed with the opinion of the trial judge that these photographs were not in-

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clined to inflame the jury. The plaintiff appealed from the judgment of the Court of Appeal to this Court.

Held: The appeal should be allowed and the judgment at trial restored.

Per Judson, Hall, Spence and Pigeon JJ.: The photographs showed graphically, although not horribly, the condition of the plaintiff as the result of his injuries and treatment in the few weeks after the accident. The photographs were relevant and were therefore admissible and should have gone to the jury unless their prejudicial effect was so great that it would exceed their probative value. The decision as to the prejudicial effect was essentially one for the exercise of the personal discretion of the trial judge in the particular circumstances of each case.

There was no justification for any interference with the award.

Per Ritchie J.: The oral descriptions given by the doctors as to the effect of the plaintiff’s injuries on his appearance and the nature of the medical treatment to which he was subjected were clearly relevant and admissible. This being the case, there was no valid ground for excluding the photographs which had the effect of providing the jury with a graphic illustration of the plaintiff’s condition during the course of his treatment as described by the doctors.

[Noor Mohamed v. The King, [1949] A.C. 182; Gray v. LaFleche, [1950] 1 D.L.R. 337; R. v. O’Donnell, [1936] 2 D.L.R. 517; R. v. Creemer and Cormier (1967), 1 C.R.N.S. 146; Green v. The King (1939), 61 C.L.R. 167 (H.C.A.); The King v. Cartman, [1940] N.Z.L.R. 725; Nance v. British Columbia Railway Co., [1951] A.C. 601, referred to.]

APPEAL from a judgment of the Court of Appeal for Ontario[1], allowing an appeal from a judgment of Grant J. pronounced after trial by jury, and directing a new trial limited to quantum of damages. Appeal allowed and judgment at trial restored.

H.G. Chappell, Q.C., and A.L. McKenzie, Q.C., for the plaintiff, appellant.

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M. Lerner, Q.C., for the defendants, respondents.

The judgment of Judson, Hall, Spence and Pigeon JJ. was delivered by

SPENCE J.—This is an appeal from the judgment of the Court of Appeal for Ontario¹ pronounced on June 27, 1968, whereby that Court allowed the appeal from the judgment of Grant J. pronounced on November 21, 1967, after trial by jury at Walkerton, Ontario. By its judgment, the Court of Appeal for Ontario, directed a new trial limited to the quantum of damages only.

At trial, the jury had awarded the appellant general damages of $15,000.

McGillivray J.A., in giving judgment for the Court of Appeal, based his conclusion that there should be a new trial solely upon the fact that the learned trial judge had permitted the submission to the jury of two photographs of the appellant which were produced and marked as exhibits at the trial and which, of course, the jury took with them into the room when they considered their verdict.

The accident occurred on September 9, 1966, and the appellant sustained injuries to which reference will be made hereafter. He was removed from the scene of the accident to the hospital at Listowel and on the same day from there to the Victoria Hospital at London. On the same night, he was operated on and the fractures of the jaw and cheekbone as well as the various lacerations were treated surgically. The surgical treatment of the fractures of the jaw, of course, consisted of the insertion of Kirschner wires and these wires protruded from the left cheek. The appellant was discharged from the hospital on September 17, i.e., eight days after the accident, and the Kirschner wires remained in his cheek for about four weeks. During that period of four

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weeks, the two photographs of the appellant were taken. His counsel sought to produce these photographs as exhibits during the examination-inchief of Dr. R.W. Granger, the surgeon who had carried out the treatment. Counsel for the respondents objected and after a rather lengthy argument the Court ruled that the photographs might be produced in evidence. During the course of the argument by counsel, Grant J. remarked:

HIS LORDSHIP: This type of pin is so common that I would wonder if most of the jury hadn’t already seen this type of pin actually holding together the teeth in the face of someone. I understand it thoroughly without the pictures and would understand it thoroughly without the pictures. The face does not display in the photograph any indication of great pain or suffering at the time.

MR. LERNER: I thought I might have something in my notes but I don’t have.

HIS LORDSHIP: My thought is it depends to a great extent upon the question of whether it is inclined to inflame the jury or not. X-rays are not admitted because of their technical nature and the grave chance that they will be misunderstood. That elementis not present here.

* * *

HIS LORDSHIP: I don’t think these pictures are offensive in that they will inflame a jury. My thought is that they are more apt, because of the expression shown by the subject of the picture, that they indicate no pain or suffering at the moment. I would think, Mr. McKenzie, you might do better with oral evidence, but that is for you to decide. I am inclined to say I will not stop you from putting these pictures in. You may do so if you want. I do say if they were pictures of the pins only I would say no because they add practically nothing to what the doctor has said, but it is most difficult for the doctor to explain exactly the condition of the scar at that time and it is for that purpose, if you will fix the exact date these pictures were taken. I suppose you haven’t the photographer here, have you?

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After the jury had retired to its room to consider its verdict, it returned to put the following question:

MR. FOREMAN: My Lord, some of the jury have asked how far are we to go to the future of these. I was just taking the present condition of these men or are we to go into the future? Anything what happen might happen in the future or just stop at the present time?

to which His Lordship replied:

HIS LORDSHIP: If in your opinion the evidence indicates that either of these men will suffer any damage in the future as result of injuries they received you are entitled and should give consideration to that.

As I have said, the jury found general damages of $15,000. In his reasons for judgment in the Court of Appeal for Ontario, McGillivray J.A. said:

I am wholly in accord with the trial judge when he says that so far as pictures of the pins are concerned they add nothing to the detail and clear evidence of the medical witnesses, supplemented as it was by the evidence of the plaintiff himself. I am not in accord with his belief that most of the Bruce County jurymen who were trying the case had observed people, or indeed any person, with pins such as these, and having corks, in the ends protruding from the face. I am satisfied indeed that such a sight would be a shock to many people. I am also of the opinion that a layman with the pictures before him might reach an erroneous opinion regarding the degree of pain and suffering connected with the treatment shown and might overlook, as a consequence, what had been established by the evidence. I consider the pictures to be inflammatory so I turn to consider whether, notwithstanding that fact, their admission was justified to better explain the evidence or as a necessary addition to it.

The occasions are frequent upon which a judge trying a case with the assistance of a jury is called upon to determine whether or not a piece of evidence technically admissible may be

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so prejudicial to the opposite side that any probative value is overcome by the possible prejudice and that therefore he should exclude the production of the particular piece of evidence. In the case of photographs, this occurs more frequently in the trials of criminal offences and more usually in murder trials. The matter is always one which is difficult for the trial judge and in itself essentially a decision in which the trial judge must exercise his own carefully considered personal discretion.

In the present case, there is no doubt that these two photographs were relevant and were therefore admissible. They show graphically, although I am strongly of the opinion not horribly, the condition of the plaintiff as the result of his injuries and treatment in the few weeks after the accident. The surgeon, in his evidence, stated that he found it difficult to describe in words the appearance of the appellant. Reference was made during the course of the trial to their evidentiary value as showing the condition of the scar at that time, and it was the opinion of the learned trial judge that he understood thoroughly the treatment and the type of pin employed without the pictures. The difficulty, of course, was not whether the learned trial judge would understand the treatment and the type of pin but whether the members of the jury would, and if there were some photographic material which would illustrate that treatment without being overly prejudicial in its effect, then that material should be available to the jury. In the present case, the appellant was entitled to damages not only because of the pain and suffering and any disability continuing in the future but, at any rate, in part, because he went around for some considerable time with these visible wires, their ends covered by large corks, protruding from the left side of his face. He would have all the discomfort connected therewith, for instance, in attempting to sleep, any possible contact with his face even when shaving, and in many other ways. Moreover, as the learned trial judge pointed out, the photographs did show with accuracy the scars as

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they existed at that time. Those scars were as visible to other persons as they were to the camera and the visibility of those scars to such persons from the moment when they were received is an element of damage which the appellant was entitled to have the jury consider.

Therefore, I believe that the photographs were admissible and should have gone to the jury unless their prejudicial effect was so great that it would exceed their probative value.

As I have quoted above, the learned trial judge was of the opinion that such Kirschner wires now were so common that most of the members of the jury would have already seen this type of pin in someone’s face. He was of the opinion that they were not inclined to inflame the jury. McGillivray J.A. in his reasons for judgment, which I have quoted above in part, was not in accord with that belief and said he was satisfied that such a sight would shock many people. It is my respectful opinion that the decision as to what would and what would not shock members of a jury can best be determined by the trial judge who sits in the court room with them and who charges them and can appreciate their reactions. I would be slow to express an opinion contrary to that of the trial judge upon the subject.

Few Canadian or Commonwealth cases consider the submission of such material in jury trials.

The respondent cited only two and my research has produced very few additional examples. The reason for such paucity of authority is, I think, plain. The decision must be essentially one for the exercise of the personal discretion of the trial judge in the particular circumstances of each case. This view is, in my opinion, confirmed by statements made in the authorities.

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In Noor Mohamed v. The King[2], Lord Du Parcq, at p. 192, in considering evidence of the accused’s connection with other alleged offences, said:

It is right to add, however, that in all such cases the judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial, having regard to the purpose to which it is professedly directed, to make it desirable in the interest of justice that it should be admitted. If, so far as that purpose is concerned, it can in the circumstances of the case have only trifling weight, the judge will be right to exclude it. To say this is not to confuse weight with admissibility. The distinction is plain, but cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible. The decision must then be left to the discretion and the sense of fairness of the judge.

(The italicizing is my own.)

In Gray v. LaFleche[3], Williams C.J.K.B., said at p. 349, when considering whether the plaintiff’s injured member should be exhibited to the jury when in a jury trial:

When, in a jury trial, the plaintiff seeks to invoke the rule laid down in Sornberger v. C.P.R. (1897), 24 O.A.R. 263, different considerations must be applied. As Chancellor Boyd pointed out, it is purely within the discretion of the trial Judge whether or not he will permit the practice there approved.

In Rex v. O’Donnell[4], a prosecution for murder which had occurred during a rape, objection was made before the Court of Appeal for Ontario to the production at trial of certain photographs of the body of the victim on the ground that that prejudiced the jury against the accused. Mulock C.J.O. dismissed all the objections in a short statement:

The photographs in question served the useful purpose of corroborating the evidence as to the

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treatment to which Ruth Taylor was subjected by her assailant. It was not believable that the sight of these photographs prejudiced the jury against the accused. This ground of appeal should be dismissed.

Masten J. at p. 532 simply excluded any consideration of prejudice if the photographs were admissible.

In Regina v. Creemer and Cormier[5], McKinnon J.A. said at pp. 154-5:

In my opinion, Ground 1 of the notice of appeal is not tenable. Photographs properly verified on oath by a person able to speak to their accuracy are admissible: Regina v. Toison (1864), 4 F. & F. 103, 176 E.R. 488. In Canada photographs have been admitted in evidence which showed the charred remains of a murdered person as they appeared at the time of a post-mortem examination: Rex v. Arthur Bannister, 10 M.P.R. 391, 66 C.C.C. 38, [1936] 2 D.L.R. 795. And photographs of the body of a woman found murdered as it appeared on the scene of the murder have been held admissible as. against the person charged with the crime: Rex v. O’Donnell, 65 C.C.C. 299, [1936] 2 D.L.R. 517.

All the cases dealing with the admissibility of photographs go to show that such admissibility depends on (1) their accuracy in truly representing the facts; (2) their fairness and absence of any intention to mislead; (3) their verification on oath by a person capable to do so. The photograph here questioned, and others, was taken by Constable Sulewski, R.C.M.P., who for the past four and one-half years has been engaged in photography, fingerprints and related fields. He testified that the coloured photograph in question is a true representation as he saw it. The defence does not contend that this photograph was inaccurate or that it was introduced with an intention to mislead, but that it was calculated to arouse a sympathetic reaction. For the reasons noted, I would dismiss Ground 1 of the appeal.

A similar view was reached by Baxter C.J. in Rex v. Bannister[6], and again in R. v. O’Leary[7].

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Although as McKinnon J.A. pointed out in the Creemer case the photographs exhibited what might well be regarded as horrible, being admissible, the prejudicial effect was regarded as no bar to their admission. It might well be that those views are too inflexible and that they fail to reflect the balancing of the probative value as against the prejudicial effect.

In Green v. The King[8], Latham C.J. said at p. 172:

It is objected that certain photographs showing the bodies of the murdered women were inadmissible in evidence and should not have been shown to the jury and that certain evidence given by a witness, Mrs. Brannigan, and another witness, Mr. Hewat, also was inadmissible. I can see no reason for holding that any of this evidence was inadmissible. No principle of law was stated the application of which would result in the exclusion of the evidence in question.

In The King v. Cartman[9], Fair J. ruled upon an objection made at a trial as to the production of certain photographs. The learned trial judge said at p. 728:

The Crown says that each photograph is necessary in order that the Crown’s case may be presented as clearly as possible. It states that the different photographs do not deal with the same aspect of the matter, in that they do not present the same physical facts, and that the facts will not be as fully explained to the jury as they should be unless all the photographs are put in.

So, on the assumption that the nature and number of the photographs might prejudice the minds of the jury, it seems that they cannot be excluded because they have considerable probative value.

But, in saying that, I am not saying that I think the presentation of the photographs would have a

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prejudicial effect on the jury’s impartial judgment. The circumstances in which the body of this poor woman were found were gruesome, and the photographs record these shocking circumstances; but I think that the jury themselves would separate the purposes for which the photographs are put in evidence from any impression they may have on first seeing them. As the case proceeds, the photographs will be regarded by them in the ordinary and proper way as matters of evidence, to be considered in relation only to the matters which they prove.

I think, therefore, that all the photographs are admissible, should be admitted, and none of them should be made the subject of a suggestion by the Court that the Crown should not tender them as evidence.

As I have said, McGillivray J.A. based his reasons for directing a new trial upon the submission of these two photographs to the jury. He did, however, say:

With all respect to the learned trial judge, I consider the photographs in question to have been without evidentiary value. Their admission did nothing to assist the jury in its deliberations but might readily have distorted in the minds of the jury the degree of the damages to be assessed particularly as these were the only photographs before them in the jury room. That this has occurred I believe to be evidenced in the sum awarded for general damages. Without underrating in any way the seriousness of the injuries suffered by the plaintiff when one considers the limited period of disability as well as the remarkable degree of recovery made the general damages awarded are, I am satisfied, substantially above those justified by the evidence.

McGillivray J.A., of course, realized that the opinion of the Court of Appeal that the damages awarded by the jury were “substantially above those justified by the evidence” was not of itself enough to justify interfering with the jury’s verdict. Even if the damages had been assessed by a judge without the assistance of a jury then, apart from error in principle, such damages could

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only have been altered by the appellate tribunal “if the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage”: Nance v. British Columbia Railway Company[10], per Viscount Simon at p. 613. That statement has been quoted and adopted in a series of cases in this Court: Fagnan v. Ure et al.[11]; Widrig v. Strazer et al.[12]; Gorman v. Hertz Drive Yourself Stations of Ontario Ltd. et al.[13]

Moreover, in the present case, the assessment was made by a jury. Viscount Simon in the Nance case, supra, continued:

The last named case further shows that when on a proper direction the quantum is ascertained by a jury, the disparity between the figure at which they have arrived and any figure at which they could properly have arrived must, to justify correction by a court of appeal, be even wider than when the figure has been assessed by a judge sitting alone. The figure must be wholly “out of all proportion” (per Lord Wright, Davies v. Powell Duffryn Associated Collieries, Ltd., [1942] A.C. 601, 616).

McGillivray J.A. described the appellant’s injuries, their treatment, the appellant’s condition at the time of the trial, and the prognosis, in these terms:

The plaintiff’s injuries were sustained in a motor vehicle accident on September 9th, 1966. He suffered severe injuries to his face and head with less serious injuries to his right knee, right chest and left shoulder. In detail there was a large irregular laceration on the left side of his face, a laceration through the lining of his mouth, complex fractures extending from under the right eye through the bridge of the nose under the left eye to the left cheek bone, described as a floating maxilla, upper jaw displaced downward and outward with the entire

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face structure displaced and with the lower jaw fractured in three places with displacement.

At the time of the accident the plaintiff was in the process of having all but nine of his teeth removed. Due to remedial measures taken following the accident these remaining teeth have been affected and it is said will also need to be removed.

The plaintiff suffered a mild concussion at the accident. He was taken to the hospital at Listowel and then transferred to the Victoria Hospital in London. There can be little doubt that his pain was severe during this period. At London under a general anaesthetic his facial bones were replaced as nearly as possible in their anatomical location and were fixed in position with two ‘Kirschner’ pins which protruded from his face. Fine wires were also put through the gum around the bases of the upper and lower teeth and the upper and lower teeth were wired together. There were also numerous small particles of glass removed from his left cheek and stitches were put in the cheek. The stitches were removed seven days later.

The plaintiff made quite a rapid recovery in view of the serious character of his injuries. At the end of four days he was ambulatory and eight days after admission to the hospital he was permitted to return home. He was examined two weeks after discharge by Dr. Grainer [sic] and again at four weeks after discharge he was seen and the Kirschner pins were removed. He was seen again two weeks later, six weeks after the accident, at which time the wires around his teeth were removed. He never required or sought medical attention thereafter. He resumed work at nine weeks after the accident and has lost no time from work since then.

At the time of the trial, March 20th, 1967, the plaintiff’s nine front teeth had yet to be removed. He had a scar some two inches in length extending from the corner of his mouth into the left cheek. It was said not to be a revolting feature and while quite visible up to 12 or 14 feet away was not readily discernible at 20 feet. Some other minor scars were not very noticeable. He had full movement of his face. He complained of some gagging in swallowing

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but his surgeon who examined him prior to trial could find no condition in the plaintiff’s mouth to account for this. The plaintiff also had numbness in two small areas on his face. He stated that there was a continual ache in the neighbourhood of his left cheek bone which became acute in the wind or when the weather was cold. In short he had made a rapid and surprisingly complete recovery from the serious facial injuries which he had suffered. It was fairly obvious as well that he had not sought to prolong his recovery and return to work.

It is difficult to characterize the sum of $15,000 awarded by the jury for the injuries and disabilities outlined by the learned justice in appeal as being “inordinately high” let alone “out of all proportion”. I am of the opinion that there was no justification for any interference with the award based on the amount thereof. Indeed, even if I were of the opinion that the photographs had been improperly admitted I would have thought that the appellant here, the respondent in the Court of Appeal, would, in that Court, have had a most convincing argument for the application of s. 28(1) of The Judicature Act, R.S.O. 1960, c. 197, which provides:

A new trial shall not be granted on the ground of misdirection or of the improper admission or rejection of evidence, or because the verdict of the jury was not taken upon a question that the judge at the trial was not asked to leave to the jury, or by reason of any omission or irregularity in the course of the trial. unless some substantial wrong or miscarriage has been thereby occasioned.

and could well have submitted that the appeal in that Court should have been dismissed.

I would allow the appeal, set aside the judgment of the Court of Appeal for Ontario, and restore the judgment of Grant J. The appellant is entitled to his costs in this Court and in the Court of Appeal for Ontario.

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RITCHIE J.—I have had the benefit of reading the reasons for judgment prepared by my brother Spence and I agree with him that this appeal should be allowed, but as I have reached the same conclusion for slightly different reasons, I find it desirable to express my view of the matter separately.

This appeal is limited to the question of the amount of general damages which the jury should have awarded to the appellant for the injuries which he sustained and in my opinion on this issue, the oral descriptions given by the doctors as to the effect of the appellant’s injuries on his appearance and the nature of the medical treatment to which he was subjected were clearly relevant and admissible. This being the case, I can see no valid ground for excluding the photographs here in question which had the effect of providing the jury with a graphic illustration of the appellant’s condition during the course of his treatment as described by the doctors.

My brother Spence has made reference to the judgment of Williams C.J.K.B., in Gray v. La‑Fleche[14], and to the cases there cited. In that case Chief Justice Williams held that where a plaintiff in a malpractice suit is claiming damages for bodily injuries, he is not entitled to show to the jury injured parts of the body which are not normally exposed, provided however that in the discretion of the trial judge such parts of the body may be exhibited in order to have the nature and extent of the damage explained by medical witnesses. In my view there is a clear distinction between the display of such injured parts of the body for the sole purpose of having them seen by the jury and the introduction of photographs taken during the course of the medical treatment for the injuries sustained. The photographs in the present case serve to illustrate the nature of the

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treatment to which the appellant was subjected and in this sense they form a part of the narrative of his illness and recovery and are both relevant and admissible.

There are cases where photographs which are relevant may nevertheless be excluded from the evidence in the discretion of the trial judge on the ground that they are inflammatory, but no basis has been established in the present case for holding that the learned trial judge erred in failing to exclude the photographs on that ground.

My brother Spence has also referred to a number of criminal cases in which photographs were tendered depicting the condition of a victim after murder or bodily assault. In some of these cases the trial judge exercised his discretion to exclude the evidence on the ground that it was of trifling weight and was prejudicial to the accused. In criminal cases where the sole issue is the guilt or innocence of the accused, it is understandable that such photographs should be excluded unless they can be shown to contain some evidence directly connecting the accused with the commission of the crime with which he is charged; but no such question can arise in the present case where the sole issue depends upon the jury’s assessment of the compensation to be awarded for injuries sustained by the appellant. The photographs depicting the condition of these injuries while the appellant was under medical treatment relate directly to this issue and are therefore admissible.

I agree with my brother Spence that the award of $15,000 made by the learned trial judge in

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this case cannot be said to be inordinately high and I would accordingly allow this appeal with costs.

Appeal allowed with costs.

Solicitors for the plaintiff, appellant: Shepherd, McKenzie, Plaxton, Little & Jenkins, London.

Solicitors for the defendants, respondents: Lerner, Lerner, Bradley, Cherniak & Granger, London.