Reasons were published today by the BC Supreme Court, Vancouver Registry, striking a jury notice so a trial could proceed without the need for a lengthy adjournment.
In today’s case (Vacchiano v. Chen) the Plaintiff was injured in a 2015 collision. Both liability and damages were contested. ICBC elected trial by jury which was scheduled in July, 2020. Due to Covid-19 all civil jury selections were suspended and jury trials cancelled up to and including September 7, 2020 everywhere in the province. As a result the trial would face a lengthy adjournment, about 2 years, if the matter was to proceed with a jury.
The Plaintiff brought an application for the jury notice to be struck. The Court agreed that doing so would be fair as a 2 year adjournment would be more prejudicial to the parties than the Defendant losing their prefered mode of trial. In reaching this decision Master Muir provided the following reasons:
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:  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.  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.  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.  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.  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.  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.
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:  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.  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.  If the jury’s answer to the causation question is no, then their task will become very nearly trivial.  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.  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.  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.  For these reasons, I have concluded that the plaintiff’s application to strike the jury notice must be dismissed.
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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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