The Answer is Discretion…Jury Strike Application Fails in Case with 32 Expert Reports

Last month I highlighted reasons for judgement where a jury strike application succeeded in a personal injury trial with 30 expert reports was deemed “too complex” for that mode of trial.  In a good illustration that there is no certain outcome when it comes to discretionary orders, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dismissing a jury strike application in a case with fairly similar facts.
In this week’s case (Henshall v. Plona) the Plaintiff alleged brain injury from a 2005 collision.  Liability was disputed and further the defendant argued that “credibility of the plaintiff is a key issue at trial. The defendants say that the evidence reveals significant conflicts in the evidence, including the plaintiff’s failure to disclose his significant pre-accident history of head injuries and drug and alcohol use.
The matter was set for a 25 day trial which was combined with two other injury claims the Plaintiff was advancing from subsequent collisions.   In the course of the lawsuit a total of 32 expert reports were obtained by the litigants.  The Plaintiff argued the sheer volume of evidence would “overwhelm a jury“.  Master Taylor disagreed and dismissed the Plaintiff’s application concluding as follows:
[27]         Given the particular facts of this case, I have concluded that the applicant has failed to satisfy me that the jury notice should be struck based on the grounds articulated in R. 12-6(5)(a), either alone or collectively. Accordingly, the application is dismissed with costs to the defendants.
 

bc injury law, Henshall v. Plona, master taylor, Rule 12, Rule 12-6, Rule 12-6(5)

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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