Executive Summary: Key Legal and Evidentiary Issues

• Ms. Aquino appealed the jury’s refusal to award damages for loss of future earning capacity following a 2019 motor vehicle accident.

• The trial judge instructed the jury on unanimity without mentioning the 75% majority rule under s. 22 of the Jury Act, but the court found no legal error.

• Instruction on future earning capacity focused solely on Ms. Aquino’s ability to work full-time in nursing, omitting broader impairment analysis.

• Although this instruction was overly narrow, it did not result in a miscarriage of justice due to lack of supporting evidence for broader loss.

• Ms. Aquino had not objected to the jury charge at trial, which weighed heavily against the appeal.

• The jury's findings were upheld as reasonable based on the trial evidence.

Facts and outcome of the case

Background and injury
In March 2019, Ms. Aquino was driving on a highway when a loose tire from an unidentified truck struck her vehicle. At the time, she was 28 years old and early in her career as a nurse. She claimed the accident caused chronic neck and back pain that restricted her ability to work full-time in nursing. The Insurance Corporation of British Columbia (ICBC) admitted liability but disputed the severity of her injuries.

Jury verdict
After a jury trial, Ms. Aquino was awarded a total of $122,800 in damages:

• $86,000 for non-pecuniary damages

• $1,200 for past loss of earning capacity

• $9,200 for cost of future care

• $26,400 in special damages

• $0 for loss of future earning capacity

Grounds of appeal
Ms. Aquino appealed the award of no damages for future earning capacity, raising two key issues:

Jury unanimity instruction
She argued the trial judge erred by instructing the jury they must be unanimous without advising them of the option to return a 75% majority verdict after three hours under s. 22 of the Jury Act. The court rejected this argument, confirming the judge’s approach was correct and consistent with legal practice. The discretion to allow a 75% verdict arises only after three hours and requires judicial decision, which neither party requested.

Loss of future earning capacity instruction
Ms. Aquino also contended that the judge improperly narrowed the jury instruction by framing the issue solely around whether she could work full-time in nursing. She argued the jury should have been instructed to consider whether her injuries reduced her overall competitiveness in the nursing job market, particularly for physically demanding roles.

The court agreed the instruction was overly narrow and overlooked alternative ways her future earning capacity might be impaired. However, it found this error did not amount to a miscarriage of justice. Ms. Aquino’s own trial presentation and evidence focused exclusively on full-time versus part-time nursing. Moreover, there was no evidence her earning potential was actually diminished given the availability of suitable nursing jobs.

Outcome
The Court of Appeal dismissed the appeal. It concluded that although the judge’s instruction was incomplete, it aligned with how the case was argued at trial. The evidence did not support a broader financial loss theory, and the jury's verdict was considered reasonable in the circumstances.