The court emphasized the principle of finality in litigation
The Court of Appeal for British Columbia has rejected the appellant’s bid to seek higher damages by changing his trial position in a personal injury case, reaffirming the principle of finality in litigation.
In Pickwell v. Rajwan, 2025 BCCA 32, the appellant sought to depart from his trial position and argue for a significantly higher award than the $500,000 he initially pursued. The court refused the request, upholding the trial judge’s award of $407,761.
The case involved a man injured in two motor vehicle accidents in 2013 and 2014. At the time, he was 27 years old and working part-time in retail. His injuries included chronic back pain, major depressive disorder, and persistent postural perceptual dizziness. Before the accidents, he had held various minimum-wage or entry-level positions with periods of unemployment. The trial judge determined that he would likely have continued working at minimum wage until age 70 and assessed his loss of future earning capacity accordingly.
At trial, the man’s lawyer argued for a $500,000 award based on an assumed annual income of $40,000 and a 50 percent contingency deduction. The trial judge instead calculated the damages using a minimum-wage framework, applied deductions for periods of unemployment and the possibility of recovery, and awarded $407,761.
On appeal, the appellant argued that the trial judge made errors in assessing his earning potential and the likelihood of unemployment. He sought to increase the award to approximately $986,820 using a different method to calculate his losses. To do so, he asked permission to depart from his trial position and present a new argument regarding his earning capacity.
The respondents opposed this request, asserting that the trial position reflected a strategic choice by counsel and was relied upon by the judge. They argued that appellants should not use the appeal process to change course simply because they are dissatisfied with the trial outcome.
The Court of Appeal denied the request and emphasized that litigants must abide by their strategic decisions at trial. It concluded that allowing a party to alter its position on appeal would undermine the finality of litigation. The court cited a recent decision that rejected a similar request and reaffirmed that appeals do not allow a complete reassessment of strategy.
Ultimately, the court allowed the appellant to proceed with the appeal but required adherence to the original trial position while not commenting on the likelihood of success.
