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Diminished Homemaking Capacity Award Made Despite "No Evidence By Which Services Can Be Valued"

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, taking a practical approach to damages for diminished homemaking capacity.
In this week’s case (Savoie v. Williams) the Plaintiff was injured when the Defendant ran a stop sign causing a collision.   The crash caused soft tissue injuries and further caused pre-existing degenerative changes in the Plaintiff’s neck and upper back to be symptomatic. Although the Plaintiff missed little time from work she struggled in her daily household activities and modified/limited how these were conducted.  ICBC argued that no award should be made because there was no evidence that she was completely disabled from household tasks.  In dismissing ICBC;s argument and assessing the loss at $20,000 Mr. Justice Johnston provided the following practical reasons:
[51]         It seems to me that this argument misses the point: as unusual as it may seem to many, before the accident Ms. Savoie was someone who could properly be described as “house-proud”, in the sense that term was employed in Prednichuk v. Spencer, 2009 BCSC 1396 at para. 113 (perhaps without the elements of construction encompassed in that case). In this case, Ms. Savoie expended considerable energy, and took great pride, in maintaining her home and yard, in cooking, and in keeping vehicles clean (with the exception of her husband’s dump truck).
[52]         I agree with the Third Party that Ms. Savoie can do some, perhaps a great deal, of what she could do before the accident. The fact remains that she is impaired in her ability to do those things she did previously without restriction. I find that as a result of the injuries she suffered in the accident that she is no longer the person described by her son as “super mom”…
[55]         The plaintiff here led no evidence by which any of the household services can be valued, on either the replacement cost or opportunity cost approach. I note that the court in McTavish expressed a preference for the replacement cost approach over opportunity cost, at paras. 48-49. The plaintiff has not hired anyone to perform household tasks that she would have performed if not injured.
[56]         I note that in Rezaei v. Piedade, 2012 BCSC 1782, the court accepted $15 per hour as a value of lost housekeeping capacity, partly because it had been used as a measure in earlier decisions, but also because it accorded with evidence in that case of what a witness paid for similar services. In Smusz v. Wolfe Chevrolet Ltd., 2010 BCSC 82, the court had some evidence based on the plaintiff’s previous work as a housekeeper on which to value housekeeping or cleaning services. I do not have such evidence in this case.
[57]         I find that Ms. Savoie was initially unable to perform some household tasks. I find that she has recovered some of her ability to do household tasks but with some difficulty and some adjustments to accommodate her changed physical abilities.
[58]         I do not read either Kroeker or McTavish as preventing me from assessing damages for this aspect of Ms. Savoie’s loss as though it were a loss of amenity. Indeed, I interpret para. 69 of McTavish, quoted above, as inviting that approach.
[59]         I do not accept the Third Party’s invitation to incorporate an award for loss under this head into non-pecuniary damages. Such an approach would leave the parties with no understanding of the reasoning or result of my findings.
[60]         Largely because Ms. Savoie’s pre-accident approach to housekeeping was such that it was more a pleasure than a task to her, and her loss in this regard is more acute than many others might have experienced, I award $20,000 for loss of housekeeping capacity.

Motorist Passing Left Hand Turning Vehicle Found 75% at Fault for Collision

Written by admin on . Posted in ICBC Liability (fault) Cases.

Adding to this site’s archived case summaries addressing fault for motor vehicle collisions, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing liability for a collision which occurred when a motorist attempted to pass a left hand turning vehicle.

In last week’s case (Ekman v. Cook) the Plaintiff was operating a motorcycle.  The traffic ahead of him slowed to a near stop and he moved into the oncoming lane to pass the vehicles.  At the same time the Defendant commenced a left hand turn into her driveway.  Both motorists were found at fault with the Plaintiff shouldering 75% of the blame.  In reaching this decision Mr. Justice Weatherill provided the following reasons:
[76]         Ms. Cook knew she was driving slowly towing a horse trailer along a straight roadway where passing was permitted.  She ought reasonably to have been alive to the possibility of a passing vehicle.  She should have looked in her side mirror and done a shoulder check in a manner timely to the commencement of her left turn.  If it is true that Ms. Henry noticed weaving motorcycles and was concerned they were going to try to pass, so too should Ms. Cook have. 
[77]         Each of the plaintiff and Ms. Cook were obliged to ensure that their respective manoeuvre could be performed safely.  I find on the balance of probabilities that both the plaintiff and Ms. Cook failed to exercise the appropriate standard of care expected of them in the circumstances and was negligent and that their respective negligence caused the accident.  Each is partly liable for the accident.
[78]         I also find that, of the two of them, the plaintiff had the better opportunity to assess the circumstances and avoid the collision.  It should have been evident to him that the traffic ahead of him had slowed almost to a stop for a reason, including the possibility that a vehicle ahead of him was preparing to turn left.  The Truck/Trailer’s left turn signal should have been evident to him.  It is incumbent upon drivers who are uncertain as to what is going on ahead of them on a highway to proceed with caution when attempting to pass.  The plaintiff did not do so.
[79]         In my view, the appropriate apportionment of liability is 75% to the plaintiff and 25% to Ms. Cook.  The defendant William Joseph Cook is vicariously liable for Ms. Cook’s negligence by virtue of s. 86 of theMotor Vehicle Act.

Assessing Damages for an "Old School" Plaintiff with Soft Tissue Injuries

Written by admin on . Posted in ICBC Soft Tissue Injury Cases.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for soft tissue injuries sustained by a Plaintiff who sought very little medical treatment.
In this week’s case (Baker v. Clark) the Plaintiff was injured in a collision for which the Defendant was at fault.  He suffered soft tissue injuries and was assessed by his family physician.  By the time of trial the Plaintiff still had symptoms but had not seen his physician for over two years.  The Court accepted that this was due to the plaintiff’s stoic ‘old school’ attitude.  In assessing non-pecuniary damages at $30,000 Mr. Justice Crawford provided the following reasons:
[59]         I am satisfied Mr. Baker sustained soft-tissue injuries to his neck and upper-back. He attended physiotherapy, but no report was tendered from the physiotherapist. That treatment evidently was for his neck and upper-back. Mr. Baker made no complaint of headaches. He was off work for three months and returned in late July 2011. After experiencing difficulty with both his neck and his low-back that became evident with the hours of sitting required of a taxi driver, he purchased an ObusForme to help his seated posture. He found that getting in and out of the cab regularly when he would stand-up and stretch eased his neck and back pain.
[60]         Dr. McKenzie’s independent assessment confirmed the neck injury though the doctor was somewhat guarded in his ongoing opinion. However, regarding Mr. Baker’s low-back pain, the doctor concluded the pain was due to de-conditioning and not because of the car accident. I am driven to an opposite conclusion for it seems equally sensible, if not more sensible, that Mr. Baker’s de-conditioning was because of the car accident…
[64]         A fair conclusion is that Mr. Baker is a “old-school” man: he is robustly built and of few words; he does not complain, and indeed, he rarely saw a doctor before the accident and then only to get his health check as the taxi company requires.
[65]         He also has not seen his family doctor about his injuries for some two years. Dr. Jones, his family doctor, wrote his letter of opinion in December 2011, some eight months after the accident. Both Dr. Jones and Dr. McKenzie were guarded about the long-term prognosis for complete recovery of Mr. Baker’s soft-tissue injuries. I conclude they were guarded due to Mr. Baker’s age and the likelihood that patients in their sixties are not going to recover from soft-tissue injuries as they might have in their earlier decades…
[67]         Counsel provided a number of cases, and of course, none are precisely alike. But I do find the defendant’s cases more on point or more similar to Mr. Baker’s situation. On the other hand, Mr. Baker’s leisure activities in his retirement are being substantially affected. I accordingly award him $30,000 general damages.

TMC Judge Has Power To Address Admissibility of Expert Reports

Written by admin on . Posted in BCSC Civil Rule 12. 49 Comments on TMC Judge Has Power To Address Admissibility of Expert Reports

Rule 12-2(9) provides the Court with broad jurisdiction to make orders at a Trial Management Conference.  Reasons for judgment were released last week by the BC Supreme Court, New Westminster Registry, confirming this power includes the ability to determine the admissibility of expert reports ahead of trial.
In the recent case (Tran v. Cordero ) the Defendant raised an admissibility concern regarding the Plaintiff’s expert report alleging bias.  The Defendant argued that ultimately the trial judge will need to decide the admissibility issue.  Mr. Justice Savage disagreed and found the Rules allow this to be dealt with by the presiding judge or master at a Trial Management Conference.  The Court provided the following reasons:
[2]             The second matter concerns an objection to admissibility of the plaintiff’s treating physician’s expert report.  The defendants say that one of their objections to admissibility of this report is the relation, which is described as a familial one, between counsel and the plaintiff’s treating physician.  That relation it is said may give rise to the issue of bias which would prevent the admission of the report.  Counsel for the plaintiff says this has been known and not until today, at the Trial Management Conference, raised as a factor regarding admissibility of the report.  The defendants say this is not a matter I can deal with, but must be left to the trial judge.
[3]             I am advised that this is a ten day jury trial.  In my view this objection is of such a fundamental nature to the ability of the trial proceeding fairly that it must be raised and determined prior to trial. In my view, the Court is clothed with the requisite jurisdiction under Rule 12-2(9).  In the circumstances it would further the object of these rules, particularly the ability to justly, fairly, and efficiently determine the issues on the merits at trial, that if the defendants intend to rely on this objection, that the application must be made and set down for hearing prior to trial and within two weeks of today’s date.  I so order.   

$30,000 Non-Pecuniary Assessment For Two Year Soft Tissue Injury

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for a soft tissue injury of two year’s duration.
In this week’s case (Visona v. Stewart) the Plaintiff was injured in a 2009 collision.  The Defendant admitted fault.  The Court accepted that the collision, despite being relatively minor, caused soft tissue injuries which lasted for up to two years.  The Plaintiff’s most serious concern was chronic tailbone pain although the Court rejected the submission that this was caused by the collision.  In assessing non-pecuniary damages at $30,000 for the soft tissue injuries Mr. Justice Jenkins provided the following reasons:
[32]         Based on the statements above and Ms. Visona’s evidence at trial, her suffering and the effects of the soft tissue injuries likely lasted no longer than two years from the date of the accident. In making this determination, I am not taking into account the “tailbone” injury which Ms. Visona claims was caused by the November 23, 2009 accident. The evidence supports a finding that Ms. Visona continued suffering from her tailbone injury long after the soft-tissue injuries appear to have healed. I am considering the tailbone injury separately because on the evidence of the nature and severity of the accident, all of the medical practitioners’ evidence and Ms. Visona’s evidence, I find it unlikely that her tailbone injury was caused by the accident.,,
[38]         As a result of the November 23, 2009 accident, Ms. Visona suffered soft-tissue injuries to her neck, back and left hip, and a bruise to the left side of her knee. Based on my finding above that Ms. Visona suffered from these injuries for a period of at most two years, the authorities quoted by the defence are more applicable in assessing damages for pain and suffering. In contrast, the submissions from counsel for Ms. Visona took into account ongoing low back pain almost four years after the accident, and emotional considerations such as the breakup of Ms. Visona’s marriage and difficulties in her relationship with her daughter, neither of which can be related to the November 23, 2009 accident.
[39]         Awards of damages for pain and suffering from other cases act as a guide but are not determinative as to appropriate compensation for the injuries. I agree that each case must be considered on its own merits, and consideration of an individual’s situation makes the assessment of damages a very subjective task. The decisions referred to which are of some assistance are Mr. Justice Verhoeven’s decision in Carter v. Zhan,2012 BCSC 595, and Madam Justice Maisonville’s decision in Vela v. MacKenzie, 2012 BCSC 438. In those cases, the learned judges awarded non-pecuniary damages of $35,000 and $27,000, respectively.
[40]         I find, in light of all of the evidence, that Ms. Visona is entitled to non-pecuniary damages of $30,000.

Full Rule 15 Cap Amount is Appropriate For Settlement 3 Months Before Trial

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 15.

Reasons for judgment were published today by the BC Supreme Court, New Westminster Registry,(Berekoff v. McMath) finding that full Rule 15 costs were appropriate where a matter settled 3 months before trial and the only meaningful work that was left related to witness preparation.
In finding costs of $6,500 were appropriate in these circumstances District Registrar Cameron provided the following reasons:
[2]             The parties are at odds as to whether or not the costs that should be awarded to the Plaintiff as mandated by Rule 15-1(15) should be reduced at all from what is called the “cap amount”, or $6,500, for a matter that settles before trial. The Plaintiff asserts that the full amount should be awarded and the Defendant argues for a significant reduction to take into account that not all of the preparation for trial had been done on behalf of the Plaintiff before the settlement…
[7]             In this case, I am satisfied on the evidence that very significant preparation had been done by Mr. Caissie on behalf of the Plaintiff. He submitted if the case had not settled all he would have been left to complete was the final preparation of his client to give evidence at trial, to prepare the Plaintiff’s family physician and his chiropractor to ready them for giving their evidence at trial, and lastly, an attendance at a trial management conference that would have been held on July 11, 2013.
[8]             With all of this I would have awarded the Plaintiff the entire cap amount of $6,500. However, Mr. Caissie had agreed before this hearing that a 10% reduction should be applied and as such I will allow the costs as claimed of $5,850 plus applicable taxes.

Who Should Address Costs Following a Mistrial?

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure. 56 Comments on Who Should Address Costs Following a Mistrial?

Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, addressing a technical procedural issue, namely which judge should address a costs application following a mistrial.
In this week’s case (Walker v. Doe) the Court declared a mistrial on the 14th day of a Jury trial following closing submissions of counsel for the plaintiff.  The Defendant sought costs and an issue arose about who was best to address this, the presiding judge for the initial trial or the judge who would ultimately oversee the mistrial.  The Court held it was appropriate, in the circumstances of this case,  for the initial judge to address the costs issue.  In reaching this conclusion Mr. Justice Voith provided the following reasons:
[12]         The broad question of whether there is a “longstanding practice” in this province that directs that the costs arising from a mistrial should be assessed by the ultimate trial judge misses an important aspect of the particular issue before me. The issue on this application is not, as the Response filed by the plaintiff suggests, whether “[t]he allocation of costs thrown away as a result of the mistrial should be in the ultimate cause or decided by the judge before whom the case is ultimately tried”.
[13]         The real issue, instead, is who should hear an application for costs, following a mistrial, when the dominant focus of that cost application is an order for special costs against counsel for the party that caused the mistrial. The fact that the dominant, if not overwhelming, focus of the defendant’s application is an order for special costs against counsel is patent from the submissions of the parties as well as from the materials and authorities that each has filed…
[24]         The benefit of having the judge who heard the trial and counsel’s submissions which gave rise to a mistrial, also hear the ensuing special costs application is obvious. In Cunningham v. Slubowski, 2004 BCSC 1204, Madame Justice McKenzie, as she then was, following a 20 day trial, heard an application for costs, including special costs, against counsel. She observed:
[61]      This trial was difficult for all concerned. Ms. Wellburn provided me with valuable assistance on this hearing. She made a valiant effort to grasp the course of the proceedings, but had the disadvantage of not having been counsel at trial. Counsel ordered a few transcripts of the proceedings, but I decided on 7 May 2003, on counsels’ request, that full transcripts were not justified by the expense. As the trial judge, I had the unique position of assessing the course of the proceedings at trial. My recollection remains vivid and, as referred to above, I have considered all the voluminous material filed on this application.
[25]         The foregoing comments are apposite. Notwithstanding the passage of time, my memory of the trial and of the matters leading to the mistrial remains good. My memory of many events remains vivid. Counsel for Mr. Walker sought to argue that another judge, with the benefit of transcripts and the Mistrial Ruling, would be in an equally good position to address the instant application. I do not think that this is so…
29]         I do not consider that another trial judge could address such submissions as readily or as easily as I could. This is so even if extensive transcripts from the first trial were ordered…
[30]         I consider that the foregoing considerations remove this application from the ambit of the “general rule” referred to in Joy and that I should hear the defendant’s application.
[31]         I have also considered whether, having arrived at the foregoing conclusion, I should defer dealing with the substance of the application until after the appeal of the Mistrial Ruling. This would have the benefit of avoiding the costs that would be incurred in hearing the application and that would be wasted if the plaintiff is successful in its appeal of the Mistrial Ruling or, indeed, from these reasons. Conversely, if the Mistrial Ruling is upheld, I expect, having regard to the history of the matter, that any cost order I make will likely be appealed in any event. On balance I consider it better and more efficient to have each of the Mistrial Ruling, these reasons, as well as the eventual reasons from the cost application available before the hearing before the Court of Appeal takes place.

BC Supreme Court Confirms No Tax Deductions For Depleted Sick Bank Damages

Written by admin on . Posted in ICBC Wage Loss. 50 Comments on BC Supreme Court Confirms No Tax Deductions For Depleted Sick Bank Damages

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, confirming that where a Plaintiff proves damages for used up sick bank hours due to a collision related injury, the recovered damages will not be subject to income tax deductions (as is done with past wage loss awards).
In the recent case (Gormick v. Amenta) Mr. Justice Sigurdson made it clear that such damages will not be subject to income tax deductions and Plaintiff’s are entitled to recover damages on a gross basis.  In reaching this decision the Court provided the following reasons:
[5]             The authorities support awarding the gross amount for loss of sick bank credits…
[9]             As is evident from DeGuzman, treating loss of sick bank entitlement as past wage loss undercompensates the plaintiff because deductions could be taken from him or her twice.  This is consistent with Ballance J.’s characterization of loss of sick bank entitlement as a “potential future loss” not in the “character of past wage loss”.
[10]         In addition, the following cases have adopted Bjarnason without further comment in awarding the gross amount for loss of sick bank entitlement:
·                 Chingcuangoco v. Herback, 2013 BCSC 268 at paras. 128-133;
·                 Kilian v. Valentin, 2012 BCSC 1434 at paras. 125-127;
·                 Chalmers v. Russell, 2010 BCSC 1662 at para. 86;
·                 Pham-Fraser v. Smith, 2010 BCSC 322 at para. 90; and
·                 Rizzolo v. Brett, 2009 BCSC 732 at para. 67.
[11]         Contrastingly, the defendant in the instant case relies on Redl v. Sellin, 2013 BCSC 581, in which the court awarded the net and not the gross amount in respect of damages for lost benefits (including paid sick days, paid time off work for medical appointments and lost vacation credits).
[12]         In Redl, the court rejected the plaintiff’s position that “as full repayment of benefits to her employers appears to be required, the net loss calculation should not be applied to the total subrogated portions of the income loss claim” (at para. 33).  In this regard, the court said, at para. 34:
It is clear under the Insurance (Vehicle) Act that the defendant’s liability for all income losses – regardless of whether a subrogated interest is claimed by an employer or an insurer – is for the net amount only.  The rights of an insurer or employer claiming a subrogated interest in an employee’s damages claim are no greater than those of the employee.  The entire gross amount of Ms. Redl’s past income loss of $37,360.05 is subject to a deduction for taxes.  How this impacts Ms. Redl’s repayment obligations is a matter between her and her employers.
[13]         However, Redl make no note of Bjarnason or the other cases following that decision.  It appears that those cases were not brought to the attention of the judge deciding Redl. 
[14]         Further, the proposition which the defendant in the instant case extracts from Redl – namely, that “[t]he rights of an … employer claiming a subrogated interest in an employee’s damages claim are no greater than those of the employee” – is not inconsistent with Bjarnason.  Bjarnason holds that an employee has the right to the gross amount of damages in respect of loss of sick bank entitlement.  Accordingly, the employer claiming a subrogated interest in the gross amount of those damages is not claiming a greater right than that of the employee.
 

Video Surveillance Influences Chronic Soft Tissue Injury Trial

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating the influential use of surveillance footage in a personal injury claim.
In last week’s case (Hollows v. Wood) the Plaintiff was injured in a “serious” collision in 2009.  The Defendant admitted fault.  The Plaintiff suffered a variety of soft tissue injuries which caused a degree of chronic pain.  The Court found that the plaintiff was “decent and genuine” but that the degree of the Plaintiff’s disability was not as great as subjectively perceived.  In reaching this decision the Court was influenced by video surveillance evidence.  In commenting on this Mr. Justice McEwan provided the following reasons:
[24]         The court has had the advantage of a DVD recording of an exercise class and some other activity the plaintiff engaged in, particularly a scene in a parking lot at a shopping venue. It is very difficult to regard the person depicted in the DVD as in any significant sense, disabled, or to accept the distinctions offered by those who treated the plaintiff as convincing. Dr. Adrian’s suggestion that, for instance, a person with the ability to twist and move vigorously through a very large number of aerobic exercises, executed rapidly and repetitively, could find it hard to vacuum or to lift light loads is difficult to credit. He explained that the difference between the strenuous exercises the plaintiff is able to perform and ordinary household tasks was that when the plaintiff exercises she uses “biomechanically correct posture”, while the activities of ordinary life are unpredictable. He also noted that a gym environment does not involve prolonged standing or sitting. The evidence shows, however, that the plaintiff’s daily routine does not require either. She works from home and is quite free to move about.
[25]         Dr. Surgenor, the plaintiff’s family physician, testified to similar effect, distinguishing between the exercises in the video and household where the positions required to do household tasks could cause discomfort.
[26]         Again, the distinction seems rather forced. The plaintiff’s exercise program was clearly designed to address many different muscles and movements and it is difficult to imagine any ordinary activity that did not have a correlative exercise in the varied routines shown to the court. It must be said, as well, that the plaintiff is clearly a highly capable member of the class. She does not lag the instructor and she gives the full measure of effort the instructor demonstrates.
[27]         The evidence of Dr. Miki is, I think, central to the assessment of the plaintiff’s condition. I largely accept what he had to say about the plaintiff’s reaction to the accident, which had the twin features of immediate anxiety about the whereabouts and safety of her daughter initially, and a more prolonged period of anxiety when it was not clear whether or not her unborn son had survived or suffered serious harm. I accept that the event was traumatic and that the plaintiff has had a prolonged reaction. It has manifested in a sense of vulnerability and in a lack of trust in others, exemplified in her refusal to allow others to drive her children anywhere.
[28]         The plaintiff is hyper-vigilant and hyper-aware. I think this extends to her own assessment of her condition and leads to a belief in a pre-accident world of perfect health and fitness that effectively amplifies her present experience of muscle pain and fatigue. I fully accept the plaintiff’s evidence, and that of her husband, that she is less cheerful and easygoing than she was in the past, but, given her obvious physical capacity, I am of the view that this is largely a product of anxiety and does not reflect anything that could be called a disabling condition, or one that significantly interferes with her activities…
[35]         As I have said, I accept Dr. Miki’s analysis as descriptive of the plaintiff’s psychological condition, and think it may account, in part, for the plaintiff’s heightened awareness and descriptiveness of her pain and suffering. I accept that she suffered significant soft tissue injuries that have left her with some residual, nagging pain from time to time, but pain that is clearly not seriously inhibiting.

Coughing Rib Injury Case Not "Too Complex" For Jury Trial

Written by admin on . Posted in BCSC Civil Rule 12, Jury Trials.

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.