ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Archive for the ‘Jury Trials’ Category

Mistrial Declared After Late Record Production and Late Report in ICBC Injury Claim

August 29th, 2017

Reasons for judgement were recently published by the BC Supreme Court, Vernon Registry,  declaring a mistrial in an ICBC injury claim proceeding before a jury.

In the recent case (Hilton v. Brink) the Plaintiff was involved in a collision and sued for damages.

The Plaintiff produced additional medical records close to trial resulting in an updated defense report addressing the Plaintiff’s injuries.  A trial was underway with a jury being selected and the Plaintiff objected to the late report being admitted.

The Court ruled that the report, with some corrections, would be admissible but doing so would prejudice the Plaintiff and a mistrial was the only sensible outcome.  In reaching this result, which nether party wanted, Mr. Justice Abrioux noted there was “blame to go around” and provided the following reasons:

[38]         I will now address the issue regarding the additional records which were provided to Dr. Pisesky well after his First Report.

[39]         Perhaps not surprisingly, both the plaintiff and the defendant blame each other for the situation which has developed. In my view there is more than enough blame to go around.

[40]         Without reviewing all the correspondence and what occurred between the parties, the plaintiff shares significant responsibility in my view, in light of the allegations of chronic pain, for not having obtained in a timely way documents from prior health care professionals, particularly for the two years or so prior to the Accident. Had the plaintiff provided an MSP printout commencing two years prior to the Accident, as had been requested as early as the fall of 2015 and on several occasions thereafter, the records obtained after March 31, 2017 would have been produced to the defence much earlier than that. This would also apply to Dr. Newmarch’s records which contained Dr. Oyler’s 2011 Consultation Report.

[41]         But the defence shares a significant part of the blame as well. When I review the correspondence, the requests made for records, and the plaintiff’s transparent replies, this was a case which cried out for a chambers application well before early July 2017, that is a month before the scheduled trial date.

[42]         There is also the fact that the plaintiff did refer at her examination for discovery in January 2016 to the difficulties she was having pre accident. It will be up to the trier of fact to determine if she concealed the true nature of her pre accident condition but that is certainly not for me to do on this application.

[43]         The defence does appear to have moved in an appropriate manner regarding Swirski interviews and the like, but only in June and July 2017. In my view the defendant should have been much more proactive at an earlier stage.

[44]         The primary relief sought by both parties would have draconian consequences on the other were it to be granted.

[45]          If I were to rule the Supplementary Report inadmissible, then the defence would only be able to rely on Dr. Pisesky’s First Report and the trier of fact would be misled as to Dr. Pisesky’s actual opinions based on the additional documentation provided to him in July 2017. It is not in the interests of justice for the trier of fact to be deliberately mislead. The practical effect would be that the defence would have no expert medical evidence in a case where the plaintiff who, as I understand it , has continued to work essentially full time since the Accident served a report at the 84 day deadline which assesses her loss of earning capacity arising from the injuries sustained in the Accident at $300,000.

[46]         On the other hand, if I admit the report into evidence in whole or in part, the plaintiff would not have the opportunity to properly address the opinions in the Supplementary Report which was only received on July 26, 2017.

[47]         There is also the fact that the plaintiff should, in my view, have the opportunity to consider obtaining a report from an orthopaedic surgeon, which is Dr. Pisesky’s field of expertise to deal with the issues raised in the Supplementary Report, including his review of what appears to be a CT scan report. This may well not be an issue which can be addressed by a physiatrist or a general practitioner, albeit one with the qualifications of Dr. Etheridge.

[48]         The plaintiff’s submission was that if the Supplementary Report were admitted in whole or in part that the trial should be adjourned. That cannot occur. The jury has been selected.

[49]         I appreciate that both the plaintiff and the defendant would prefer this trial to proceed, but in light of the positions they have taken on this application, I see no other alternative to a mistrial. This, in my view, will provide fairness to both parties. They will now have the opportunity to put before the trier of fact the evidence they consider necessary based on the recently obtained records.

[50]         A new trial will also provide the defence to address some obvious deficiencies in the Supplementary Report, in particular Dr. Pisesky’s statements regarding the plaintiff’s credibility.

[51]         I declare a mistrial.


Complex Wage Loss Claim Fuels Successful Jury Strike Application

December 7th, 2016

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, granting a Plaintiff’s jury strike application.

In today’s case (van Driesum v. Young) the Plaintiff was involved in a 2011 collision and sued for damages.  The trial was scheduled for 18 days before a jury at the Defendants election.  The Plaintiff succeeded in striking the jury from the case largely on the basis that his wage loss claim was complex.  In granting the application Mr. Justice Macintosh provided the following reasons:

[6]             The overall question is trial fairness, weighing the Defendant’s presumptive right to a jury against the risk of unfairness to the Plaintiff by having a jury attempt to decide facts and answer questions which are too intricate or complex.  My conclusion is that this case should not proceed with a jury.

[7]             The motor vehicle accident giving rise to the claim occurred on February 23, 2011.  That year also serves as the approximate dividing line between what I will characterize as two separate careers for the Plaintiff.  The methods for determining income loss and lost-earning capacity are complicated within each of his two careers.  In what I am viewing as the Plaintiff’s post‑accident career, or second career, determining income loss and lost-earning capacity are, in my view, particularly complex.

[8]             Before the accident, the Plaintiff practised law for 20 years.  For the last 17 of those years, he was a partner in a Victoria law firm.  During at least part of that time, he practised law through the business model of a personal law corporation.  Money he received from the firm went into his law corporation.  He did not take all that money out, at least not regularly.  Also, he split income with his wife in reliance on the applicable tax laws.  Accordingly, his income tax returns do not tell the full story of his pre‑accident earnings.  They need to be interpreted together with his personal law corporation’s annual financial statements, and the particulars of his income splitting with his wife.

[9]             In the result, determining the Plaintiff’s pre‑accident earning history will not be a straightforward exercise.  The complexity of that exercise, however, pales when it is compared with determining the Plaintiff’s earnings, lost earnings, and diminished earning capacity post-accident.

[10]         The Plaintiff has maintained, at different times, at least three personal companies:  through one, after his accident, he became the president of a mining company; through another, also after the accident, he consulted on WorkSafe BC claims; the other was his pre‑existing personal law corporation, which remained in place until December 31, 2014, to receive the Plaintiff’s declining earnings from his residual practise of law.  That included some post‑accident legal work by the Plaintiff, as well as some pre‑accident legal work which gave rise to post‑accident remuneration.

[11]         It will, in my view, be extremely difficult for the trier of fact to sort out both the Plaintiff’s true earnings in the post‑accident period, and the extent to which the accident impaired his earning capacity.

[12]         Furthermore, the Plaintiff’s post‑accident earnings history, and evidence of earning capacity, is over-layered with a dispute the Plaintiff had with a post‑accident business colleague, who was a former client from the Plaintiff’s law practice.  Plaintiff’s counsel characterized the evidence of that dispute as amounting to a trial within a trial in this proceeding, and that is not an unreasonable analogy.

[13]         The difficulties for a jury in this case would be increased by the difficulties a judge would have in properly charging the jury in matters of causation and the quantification of damages.

[14]         The brief summary above, of the complexities in determining both causation and damages, and in the judge charging the jury, probably would have caused me to strike the jury even if there were no other relevant facts.  When I add the other complexities of the case, which are associated with the accident itself, and the related medical evidence, the complexity is only increased.

[15]         I will preface this next part of the analysis by saying that what I call the accident evidence and medical evidence, viewed in isolation, would probably not have caused me to strike the jury.  That evidence becomes relevant on this application, however, when it is added to the evidence associated with determining the past and future income loss, and diminished earning capacity, discussed earlier in these reasons.

[16]         Liability is in issue.  All the elements of the damages claimed are also in issue.  The Defendant, through his pleadings and his expert witnesses, disputes diagnosis, causation, mitigation, prognosis and the Plaintiff’s working capacity.  It is probably the case, as well, that at least some clinical records will have to become part of the evidentiary record.

[17]         The Plaintiff plans to call nine expert witnesses in at least seven disciplines, and the Defendant plans to call four expert witnesses and tender eight expert reports.  I further note that the Plaintiff intends to object to all or part of three of the Defendant’s expert reports, and the Defendant intends to object to all or part of four of the Plaintiff’s expert reports.

[18]         The law is clear in saying that the judge’s discretion on this application must be exercised having primary regard to his or her assessment of the relevant factors present in the particular application:  see Rados v. Pannu, 2015 BCCA 459, at paras. 30‑32 and Such v. Dominion Stores Ltd., [1961] O.R. 190 (Ont. C.A.).  In other words, the analysis, not surprisingly, is driven by the facts present in the application at bar.

[19]         What is appropriate for a jury to try has to do not only with the jury’s capacity to understand the evidence as it is presented and rebutted, but also to retain over several weeks what they have heard and then analyse it in the context of the questions they are required to answer.  (See Wipfli v. Britten, [1981] B.C.J. No. 1706 (F.C.) at paras. 30 and 31.)

[20]         When the facts in this application are viewed through the legal prism of the cases cited above, I find that the Plaintiff has established the three grounds he relies upon, noted above in paragraph 5.  As stated above in paragraph 6, I conclude that I should exercise my discretion to strike the jury.


Plaintiff Allowed To Tell Jury About Defence Medical Exam That Resulted in no Report

January 4th, 2016

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, confirming it is fair game for a plaintiff to testify they attended a defence medical exam where no report was produced and the Defence is not relying on opinion evidence from their expert.

In the recent case (Norris v. Burgess) the Plaintiff alleged injury as a result of two collisions.  The Defendants denied any injury occurred.  In the course of the lawsuit the Plaintiff attended a defence medical appointment with a psychiatrist.  The Defendants “chose not to obtain a medical opinion from the psychiatrist” and did not call him as a witness.  In the course of trial the Defendants objected to the Plaintiff testifying “as to her attendance and surrounding circumstances of the independent medical examination“.

In ruling that such testimony is fair game Mr. Justice Funt provided the following reasons:

[12]        The Court will rule in the plaintiff’s favour.

[13]        As Rule 7-6 of the Supreme Court Civil Rules contemplates, an individual medical examination may be ordered where the “physical or mental condition of a person is in issue”. In this case, the independent medical examination was not pursuant to a court order. The Rule, however, illustrates that an independent medical examination will usually occur only where there is a physical or mental condition in issue.

[14]        The plaintiff’s medical condition is clearly in issue. Where the defence asserts that the plaintiff may have exaggerated her injuries, steps taken by the plaintiff at the request of the defence may be relevant.

[15]        Even if there were for closing argument an agreed stipulation of the plaintiff’s attendance at the independent medical examination, I would prefer that the evidence be led as part of the plaintiff’s case. I would be concerned that the jury could be confused. Evidence and argument should be kept separate.

[16]        Civil litigation is adversarial and litigant-driven. Where one party asks that the other party attend an interview or examination with a third person (whether or not that person is an expert) and the other party so attends, the requesting party should not be surprised that the interview or examination may be relevant with evidentiary consequences, including the possibility of an adverse inference. An unwanted but foreseeable consequence does not give rise to unfair prejudice.

[17]        In short, plaintiff’s counsel may lead evidence as to the plaintiff’s attendance, and surrounding circumstances, regarding the independent medical examination requested by the defendants.


Retrial Ordered After “Inconsistent” $765 Jury Award in Personal Injury Claim

November 27th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering a retrial after a jury awarded special damages but nothing for non-pecuniary loss in a personal injury lawsuit.

In today’s case (Harder v. Poettcker) the Plaintiff proceeded to jury trial after alleging injuries in a collision.  The jury found the Plaintiff 85% at fault for the crash and awarded a total $5,100 in damages, which were all based on out of pocket expenses and awarded nothing for non pecuniary damages.  After applying the split of fault this left an award of $765.

The presiding judge found a new trial was necessary as it was inconsistent to award money for special damages yet nothing for non-pecuniary loss for the injuries underlying the need for those damages.  In reaching this conclusion Mr. Justice Sigurdson provided the following reasons:

17]         Notwithstanding the importance of attempting to enforce a jury’s verdict and the fact that even apart from the 85% contributory negligence award against the plaintiff, the award was at best either very modest or nil, I am driven to conclude that to award nothing for non-pecuniary damages but award $1,200 for special damages is an inconsistent verdict.

[18]         Although a possible rationalization of the award is that the jury intended to award the plaintiff say $400 for non-pecuniary damages but rounded it down in accordance with my instructions to zero, I reject that. I find the jury intended to award nothing for non-pecuniary damages. Even if the jury intended to award only a nominal amount for non-pecuniary damages, I think that would still create an inconsistent verdict: see Le v. Luz, 2003 BCCA 640.

[19]         I also reject the submission that the jury verdict could properly be interpreted to mean that they intended to award something for non-pecuniary damages under a pecuniary heading.

[20]         Although the defendant argues forcefully that there was coherence and consistency in the jury verdict, I respectfully disagree. I find that the jury award, although small from the plaintiff’s perspective, is inconsistent and judgment cannot be entered on the defendant’s motion.

[21]         The question then arises whether I can and should sever the issues of liability and damages and enter judgment on liability for the plaintiff including the contributory negligence finding and direct a retrial only on damages, or whether I should order a retrial of the entire case.

[22]         I have concluded that I am bound by the considered decision of my brother Weatherill J. in Kalsi. Although severance may be ordered in many cases before trial, this is not an appropriate case to have issues that are largely dependent on credibility decided by different triers of fact.

[23]         Given that there must be a retrial, how should that take place? A further trial by a new jury would be months, or a year or more, ahead. The mode of trial by jury was at the plaintiff’s request but now he wants the retrial by judge alone. The plaintiff now consents to and requests a retrial being conducted before me.

[24]         I think for a number of reasons that the retrial should be before me. I heard all of the evidence and the submissions of counsel. Given the fact that it would be a lengthy time until the matter is retried before a jury, and given the age of the plaintiff and the question of cost to the parties, I think it is appropriate that I conduct a retrial based on the evidence I have heard and I so order. Accordingly I exercise my discretion under the governing rule that the retrial take place before me without a jury.

[25]         I have heard the submissions of counsel and a recording of those submissions is available to me to refresh my memory. Counsel may make further submissions in writing on liability and damages provided they do not repeat what I have already heard in the submissions to the jury. I ask that the plaintiff file his argument within three weeks and the defendant his argument within three weeks following, with the plaintiff having a right of reply within a week. I will then hand down a written decision.


BC Court of Appeal – Jury Trial OK in Case With 40 Expert Reports

November 10th, 2015

Reasons for judgement were released today by the BC Court of Appeal finding a personal injury lawsuit with 40 expert reports totaling over 700 pages was not too complex for a jury to determine.

In today’s case (Rados v. Pannu) the Plaintiff alleged serious injuries as a result of a motor vehicle collision including “a traumatic brain injury; a vestibular injury that has impaired the appellant’s balance and induced bouts of nausea, dizziness and vomiting; various musculoligamentous and other physical injuries; and, a major depressive disorder”.

The Defendants elected a jury trial and the Plaintiff objected arguing the case was ‘too complex’ and pointed to the sheer volume of competing expert evidence.  The Plaintiff pointed to many cases where discretion was exercised to strike a jury in similar cases.  In finding that judicial discretion does allow for competing results and more than ” adding up the number of experts and medical issues or the number of pages of documents or the length of trial” is needed the Court provided the following reasons:

[22]         As I turn to consider the appellant’s argument, it is useful to remember that a decision whether to strike a jury notice is not only discretionary, but also engages important issues of trial management. The determination of such issues is properly a matter for the trial court. Furthermore, the onus is on the applicant to displace the presumptive right to a jury: MacPherson v. Czaban, 2002 BCCA 518 at para. 17, leave to appeal ref’d [2002] S.C.C.A. No. 480. Accordingly and appropriately, decisions of this kind attract considerable deference from this Court. These decisions turn critically on an assessment by the trial court of multiple factors bearing ultimately on the question whether a matter can be conveniently tried with the jury or should be heard without one.

[23]         The appellant points to numerous cases in which jury notices have been struck which share similarities with this case in terms of the number of medical issues, the number of experts, the nature of the issues and the length of trial. He suggests the result in this case cannot be reconciled with the results in those cases. Thus, he argues that the bar for striking a jury notice has been raised to a level beyond anything that can be accounted for by the inevitable variability of outcome inherent in the exercise of discretion.

[24]         I accept that, as was pointed out in Cochrane v. Insurance Corp. of British Columbia, 2005 BCCA 399 at para. 28:

It is unassailable that decisions under Rule 39(27) are driven by the particular facts of the case.  Even so, the facts in prior decisions are helpful in determining whether the discretion to grant or refuse an order to strike a jury notice has been exercised judicially.

[25]         It follows from this that, even allowing for the inevitable variation in outcomes arising from exercises of discretion, one would expect decisions with broadly similar facts to produce broadly predictable outcomes if discretion is being exercised judicially…

[30]         In my opinion, while other similar cases can assist in assessing whether discretion has been exercised judicially, broad and general similarities may mask material differences. The analysis does not begin and end with adding up the number of experts and medical issues or the number of pages of documents or the length of trial. Those factors may be indicative of whether the trial may be conveniently heard with a jury, but they are not necessarily the last word. They were not here because the judge delved deeply into an analysis of the factual circumstances engaged in the trial and exercised his discretion based on his assessment of those circumstances.

[31]         The appellant is not able to point to any relevant factors the judge failed to take into consideration in exercising his discretion, nor can he point to any irrelevant factors he did consider. He is not able to point to any consideration receiving too much or too little weight. In short, the appellant was not able to direct us to any specific error in the exercise of discretion that would warrant this Court interfering with the order.

[32]         The appellant suggested that if this order is not set aside, this Court would be endorsing a much higher bar for striking a jury notice than has previously been the case in this province. I do not accept that submission. In my view, this case turned on its specific and particular factual circumstances as they stood at the time of the application and as they were analyzed by the judge.  The judge then properly applied the relevant considerations to the exercise of his discretion. The case turned on its facts and does not represent a departure of principle or a resetting of the height of a bar.

[33]         Finally, it should be pointed out, as the chambers judge did, that when this matter comes on for trial, the trial judge “may order the trial to proceed without a jury if the interests of justice then require the making of such an order”. It may be that the case that goes to trial may be quite different to what now appears to be the case. As noted by Seaton J.A. in Ball v. Novlesky, [1981] B.C.J. No. 677 (C.A.) at para. 16, we and the chambers judge can examine the issue only on the basis of the record before us. The case at trial may be different and the trial judge would be free to deal with the issue then, if necessary.

[34]         In my opinion, the submissions of the appellant do not rise above an attempt to reargue the case that was rejected by the chambers judge. I do not think that the appellant has identified any error in principle in the exercise of the chambers judge’s discretion. Accordingly, I would dismiss the appeal.


Jury Verdict Deemed Perverse For Failing To Award Non-Pecuniary Damages

October 2nd, 2014

Reasons for judgment were released today by the BC Supreme Court, New Westminster Registry, ordering a retrial following a ‘perverse’ jury finding.

In today’s case (Kalsi v. Gill) the Plaintiff was injured in a vehicle collision.  A jury found both parties equally to blame and after factoring the liability split awarded the Plaintiff $10,000 for past wage loss and special damages.  The Jury awarded nothing for non-pecuniary loss.  Mr. Justice Weatherill ordered a new trial and in doing so provided the following reasons:

[23]         While the court should strive to give effect to a jury’s verdict, it cannot do so where the jury’s verdict is internally in conflict.

[24]         In this case, it is apparent that the jury did not accept the plaintiff’s evidence as to her losses. Put bluntly, the jury did not believe her. It is obvious, however, that the jury found that the plaintiff was injured, at least to some degree, by the award for special damages of $8,000 and past loss of earnings of $12,000.

[25]         While the jury is the judge of issues such as credibility, it was not open to them, after making the findings as they did regarding special damages and past loss of wages, to fail to make any award for non-pecuniary damages (Balla). Such a result was inconsistent.

[26]         The basis of any tort action rests on a finding that the plaintiff suffered an injury. It is illogical to conclude that a plaintiff was injured and suffered past wage loss and special damages but did not sustain and pain, suffering, or loss of enjoyment, no matter how transient. (Balla, Stewart).

[27]         The issue, then, is whether this result necessitates a new trial (Rule 12-6(7)) or whether I can pronounce judgement on some of the claims and order a retrial on the balance (Rule 12-6(8)).

[28]         There is a clear difference in wording of the two rules that sheds some light on the issue. Rule 12-6(7) demands a retrial when either:

a)    a jury answers some but not all of the questions directed to it, or

b)    the jury’s answers are conflicting so that judgement cannot be pronounced on the findings.

[29]         Conversely, Rule 12-6(8) allows partial judgment when a jury’s answer entitles a party to judgement in respect of some but not all of the claims of relief. It does not contemplate partial judgment when the jury’s answer is conflicting.

[30]         Respecting the jury’s finding of liability between the parties for the collision, that question has been answered. There is nothing in the rest of the jury’s verdict that is inconsistent with it.

[31]         Respecting the jury’s finding on damages, an inconsistency exists. An award for special damages and past wage loss and no award for non-pecuniary damages have repeatedly been characterized in all the relevant case law as a “conflict” and an “inconsistent result”.

[32]         This conclusion is reinforced by Balla, Banks and Binnie v. Marsollier, 2001 BCCA 543. Re-trials were ordered in all three pursuant to Rule 41(2) (now Rule 12-6(7)). There was no mention of the potential application of Rule 41(3) (now Rule 12-6(8)).


Nightclub and Bouncers Ordered To Pay $3,084,200 Following Assault on Patron

October 1st, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, highlighting a $3 million jury verdict following a nightclub assault.

In today’s case (Maras v. Seemore Entertainment Ltd.) the Plaintiff was assaulted outside of a nightclub in Vancouver, BC and sustained a traumatic brain injury.  Both the owner of the club and 3 bouncers were found liable and ordered to pay the damages.  Prior to trial the Plaintiff offered to settle for $1.425 million an offer which was countered with $20,000 by the Defendants.   The Court ordered that the Defendant pay increased costs for failing to accept the Plaintiff’s reasonable pre-trial offer.  In highlighting the jury’s decision the Court provided the following reasons:

[1]             This action arose from an assault upon the plaintiff that occurred on April 4, 2009 outside the Au Bar nightclub, located on Seymour Street in Vancouver.

[2]             The plaintiff sustained serious injuries including a complicated mild traumatic brain injury combined with orthopedic and psychiatric injuries.

[3]             The plaintiff was 20 years old at the time of the assault and 25 years old when the action proceeded to trial before a jury for nine weeks commencing April 7, 2014.

[4]             Both liability and the quantum of damages were in issue at trial and vigorously contested by the parties.

[5]             On June 9, 2014, the jury delivered its verdict. Liability was found against the corporate defendant owner of the nightclub and three of the security personnel or “bouncers”. The action against one of the security staff defendants, Mr. Yip, and the nightclub’s manager, Mr. Childs, was dismissed. The plaintiff was found not to be contributorily negligent.

[6]             The jury assessed damages as follows:

General damages $   250,000
Loss of income and loss of earning capacity to trial $   175,000
Future loss of earning capacity $1,832,000
Cost of future care $   800,000
Special damages $     27,200
Total $3,084,200

 


Paraplegia Claim Not Too Complex For Jury Trial

January 6th, 2014

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, addressing a jury strike application in a paraplegia injury claim.

In the recent case (Laktin v. Vancouver (City)) the Defendants “were responding to a call that the Plaintiff might be suicidal” when one of the Defendant police officers “shot the plaintiff, rendering him paraplegic“.

The Plaintiff sued for damages and elected trial by Jury.  The Defendants brought an application to strike the jury notice arguing the trial was too complex for a jury to hear.  Mr. Justice Pearlman disagreed finding that despite the severe nature of the injury the matter was appropriate for jury trial.  In reaching this conclusion the Court provided the following reasons:

[35]         This is not a trial that involves multiple accidents or actions, or that raises complex issues of causation of the plaintiff’s physical injuries. The jury may have to determine the extent to which the  psychological injuries claimed by the plaintiff result from a pre-existing condition rather than the incident of January 21, 2006. That will involve the jury making findings of fact that are well within the capabilities of a modern jury.

[36]         The defendants have identified numerous issues of fact and law relating to issues of liability, the statutory and common law defences to the plaintiff’s claim of battery available to the defendants, the apportionment of fault, and damages.  It is the responsibility of the trial judge to instruct the jury concerning the legal principles that will apply to the facts as found by the jury.  The court will instruct the jury on the application and interpretation of the relevant provisions of the Police Act and the Criminal Code. 

[37]         The duties of care owed by the defendants to the plaintiff are a matter of law for determination by the trial judge rather than the jury. It will be the responsibility of the trial judge to determine whether the City of Vancouver owed a duty of care to the plaintiff, and whether, as a matter of law, there is any basis for the plaintiff’s claim against the City, other than its liability under s. 20 of the Police Act for the torts of municipal police officers.

[38]         Whether, as a matter of law, the application of the doctrine of ex turpi causa would be justified in the circumstances of this case is also a matter for the trial judge.

[39]          The defence correctly submits that the provisions of ss. 34 and 37 of the Criminal Code in force at the time of the incident that gave rise to this action add a level of complexity to this trial.   However, juries in criminal cases have been frequently called upon to apply those provisions, and with the assistance of instructions from the trial judge, have done so. I see no reason why a civil jury, properly instructed, cannot perform a similar task.

[40]         In my view, finding the facts regarding what occurred in the sequence of events that culminated in Constable Coulthard shooting the plaintiff, and determining whether the force used by the police was justified in all of the circumstances are tasks well suited to a jury composed of eight members of the community.


“Only The First Notice of Trial Matters” When Excercising Right to a Jury Trial

December 12th, 2013

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing whether parties to an action joining a matter already set for trial can elect the mode of trial.

In this week’s case (Catalano v. Ogloff) the Plaintiff was injured in two collisions.  The Plaintiff started an action for the first collision, set the matter for trial and filed a jury notice.  The Defendant did not.  A separate action was started for the second collision and all parties filed a consent order providing that the cases be head together on the date already scheduled.  The Defendants in the second action then filed a jury notice.  The Court found this was a nullity.  In striking the Defendant’s jury notice Master MacNaughton provided the following reasons:

[11]         For the following reasons, I have concluded that the defendant’s jury notice is a nullity.

[12]         First, under Rule 12-6(3) of the Supreme Court Civil Rules it is clear that the election of a jury trial is a two-step process. The right is preserved by serving a jury notice but the matter will not be heard by a jury unless and until the jury fees are paid.  A jury trial occurs only if both steps are completed. Thus, the defendant to the second action could not presume that the first action was proceeding to a jury trial.  It is for that reason that all parties to an action independently preserve their election of a jury trial by serving their own jury notice.

[13]         Second, the early cases which established the principal that it is only the first notice of trial which matters, with respect to the election of a jury, arose in the context of trial adjournments. However, that principal has been expanded. I agree with the conclusion of Master Groves (as he then was) in Bumen v. BC Transit, 2001 BCSC 443:

… when a notice of trial has previously been given in one action, without a jury notice being filed, a subsequent consent by the parties to having other actions tried at the same time ought to be treated as an election to have a trial by judge alone in all the actions. In other words, when parties consent to the consolidation of multiple actions they are bound by the mode of trial specified in the notice of trial filed with respect to the first action. …(para. 20)

Master Groves’ reasoning mirrors that of Master Barber in Wright v. Rose (1995), 32 C.P.C. (3d) 319 where he said:

…there is no valid jury notice issued in the first action…it could be argued that the jury notice is valid for the second and third action.  Of course, when actions are tried at the same time they should either be all heard with a jury, or herd by a judge alone.  In my opinion, when the defendants consented…to all three actions being tried at the same time, that was an election to have trial by judge alone. … (para 17)

[14]         In my view, the fact that the plaintiff had delivered a jury notice in the first action does not change the result.  The defendant in the second action could not rely on the plaintiff’s jury notice as that was merely the first stage of the election process and did not guarantee a jury trial (I note that it has since been withdrawn). The defendants to the first action had not delivered such a notice. To ensure his right to a jury trial, the defendant in the second action should have made it a term of his consent to having the matters tried together or, if no consent was forthcoming, he could have delivered a jury notice and then applied in chambers to have the matters heard together with a jury.

[15]         By proceeding the way he did, the defendant to the second action was not at liberty to deliver the jury notice. It is a nullity.


Coughing Rib Injury Case Not “Too Complex” For Jury Trial

November 1st, 2013

Reasons for judgement were published today by the BC Supreme Court, Kelowna Registry, addressing whether a unique causation issue in a personal injury claim was too complex for a jury.

In today’s case (Jackson v. Yusishen) the Plaintiff was rear-ended by the defendant’s truck in 2009.  The Plaintiff sustained some injuries and sued for damages.   Some 6 months following the crash the plaintiff “coughed and the pain in his chest and back suddenly increased in intensity“.  He was ultimately diagnosed with “one or two fractured ribs…hernias of the intercostal area and of the diaphragm“.  He had multiple surgeries to correct these complications that had not been successful.  The biggest issue for trial was for the jury to decide whether the ribs were compromised in the collision and whether the collision caused or contributed to the ultimate complications the Plaintiff was diagnosed with.

The Defendant elected trial by Jury.  The Plaintiff argued the matter was too complex for a jury to decide.  Mr. Justice Rogers disagreed and held that a jury could address this issue.  In upholding the jury election the Court provided the following reasons:

[23]         It is possible that the jury may find that the accident weakened the plaintiff’s ribs such that the later coughing episode caused them to fracture. In that event, the standard language of an Athey instruction will suffice to guide the jury’s deliberations. Again, juries are regularly instructed on similar Athey issues – this case would not present any greater complication on that issue than any other.

[24]         Once the jury has determined whether the accident caused rib fractures or a weakening of the ribs that later turned into fractures, the rest of the jury’s duties will be relatively straight forward. If their answer to that question is yes, then they will have to assess the degree to which the injuries have impaired the plaintiff’s function and award damages accordingly. For that task, they will have the assistance of expert reports of the type that are conventionally adduced in personal injury cases. Those reports include a functional capacity evaluation, a vocational assessment, a cost of future care report, and an economist’s assessment of the present value of various loss scenarios. Again, in serious personal injury cases, juries are routinely asked to consider such reports. There is nothing about the content of the reports in this case that suggest that a jury would not be able to conveniently consider their content and render a verdict accordingly.

[25]         If the jury’s answer to the causation question is no, then their task will become very nearly trivial.

[26]         Although there are a number of expert reports that will go into evidence in this case, the reality is that the jury will likely not be required to scour each and every word in each and every report. For example, the plaintiff’s economist’s reports may be useful to the jury should it wish to award future losses to the plaintiff, but it is unlikely that the jury will need to go beyond picking what appears to it to be the appropriate multiplier for a given loss and a given set of positive and negative contingencies.

[27]         In my opinion, the jury’s task of hearing, examining, and considering the evidence in this case will not exceed the bounds of convenience. The jury will be asked to conduct a scientific inquiry into what the radiographs could and did show of the plaintiff’s rib structure, but that will be a relatively narrow and focused inquiry. The jury will be guided by the opinions of qualified medical practitioners and by counsel’s submissions. It is not every contest of medical opinion that will disqualify a jury from trying a personal injury claim, and in my view, the scientific inquiry that the jury will make on this issue will be within its capacity.

[28]         Once the jury gets past the issue of causation, this case will become a relatively straightforward assessment of personal injury damages. The evidence on quantum issues is entirely conventional and is of the sort that juries are often asked to consider and assess. The jury may have to make some difficult decisions, but the path to those decisions will not, in my view, be so intricate or complex as to overwhelm the jury’s capacity to arrive at a just and proper judgment.

[29]         For these reasons, I have concluded that the plaintiff’s application to strike the jury notice must be dismissed.