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.

Posts Tagged ‘Froese v. Wilson’

Potentially “Harsh” Result No Reason To Strike Jury in Injury Claim

November 14th, 2017

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, dismissing a plaintiff request to strike a jury notice in an ICBC injury claim.

In the recent case (Froese v. Wilson) the 17 year old Plaintiff who “became severely intoxicated at a house party” left riding in the cargo box of a pickup truck which then moved and “caused him to fall out of the truck.”.

The Plaintiff sued for damages and the matter was set down for a 20 day trial with the Defendant electing trial by jury.  The Plaintiff objected noting that a total of 19 expert witnesses would likely testify, the matter was too complex for a jury and the jury “may take a harsher view of the plaintiff’s conduct than would a judge in assessing liability“.  The court noted that while this may be true it is no reason to strip a party’s right to trial by jury.  In reaching this conclusion Mr. Justice Smith provided the following reasons:

[17]         This trial is set for 20 days—a length no longer unusual for a jury trial. Although there is a multiplicity of expert evidence, it comes from experts in fields that are commonly at issue in personal injury cases and there appears to be a great deal of common ground as to the nature of the injuries suffered by the plaintiff in the motor vehicle accident. As said above, the main areas of disagreement relate to the long-term impact of those injuries and the cause of the plaintiff’s ongoing symptoms. I am not persuaded that those areas of disagreement are so complex that they cannot be considered by a properly instructed jury on the basis of properly presented and explained expert evidence.

[18]         Counsel for the plaintiff also alluded to a concern that a jury may take a harsher view of the plaintiff’s conduct than would a judge in assessing liability. That is entirely speculative and I presume jurors will be attentive to whatever instructions the trial judge gives them on how they are to go about assessing the relative blameworthiness of both parties. However, the possibility that a jury verdict may reflect community attitudes that differ from those of judges is one of the frequent justifications for retaining the jury system.

[19]         Counsel also argues that the outcome of this trial may determine the course of the rest of the plaintiff’s life and subjecting him to the uncertainties inherent in a jury trial is inconsistent with the object of a just determination on the merits set out in R. 1-3.

[20]         Although I have a certain sympathy with the plaintiff’s concern about the risks and uncertainties in a jury trial, the fact remains that R. 12-6 continues to give either party the right to unilaterally select trial by jury. Unless the party who does not want a jury trial can meet the onus of showing that it is not appropriate in a particular case and the presumptive right to a jury trial should be denied, a jury trial and verdict must be considered to come within the “just determination” envisioned by R. 1-3.

[21]         The plaintiff has failed to meet the onus in this case and the application to strike the jury notice must be dismissed.