A man was injured in a motor vehicle collision on Highway 401 that resulted in several impacts to his vehicle and caused him severe injuries, including a traumatic brain injury. About eight months before the trial date, the plaintiff moved to strike the three jury notices filed in this action. The plaintiff’s motion, in Kwok v. Abecassis, was based on the argument that the jury would be asked to resolve a number of complex issues of mixed fact and law, with respect to both liability and damages, which are likely to be more fairly and expertly adjudicated by a judge.
The important issues to resolve in this motion included: whether to classify the incident as one or two collisions; if separated into two collisions, are the plaintiff’s losses divisible and in what proportion; whether the plaintiff was contributorily negligent; whether the defendants are liable; and how differing opinions on the plaintiff’s life expectancy impact the calculation of damages. It was also noted that a large volume of opposing expert witness evidence would be presented by many witnesses — on the issues of liability, damages, and the potentially negative impact of the plaintiff’s brain injury on his presentation as a witness — and these elements would inevitably impact the length of the trial. The plaintiff asserted that justice would therefore be better served by striking the jury before the trial.
The defendants disagreed and argued that the right to a jury trial is a fundamental and substantive right and also, the plaintiff’s motion is premature and a “wait and see” approach is more appropriate in this particular case. After considering all the facts, the judge agreed with the defendants and asserted that, in this early stage of a civil action, there is nothing about the case that justifies deviating from the “wait and see” approach. Further, jurors must commonly assess different concepts and measurements (for example, speed, driving behaviour and causation) provided by various expert witnesses, such as accident reconstruction engineers and medical practitioners, and it is too soon to speculate whether the expert evidence for this case will be too confusing or complex for a jury to understand.
Another issue that may cause concern in a jury trial is potential juror bias and whether a jury can fairly assess the merits of the case, when hearing evidence by a plaintiff who has suffered a traumatic brain injury. A key concern is that jurors may react negatively to the behaviour and testimony of such a witness. However, the judge maintained that this circumstance can often be effectively moderated by appropriate medical witnesses and, if befitting, a mid-trial charge. After considering all the issues, the judge concluded that this civil action may proceed with a jury.
Two weeks into the trial, the plaintiff once again moved to strike the jury and this time, the judge agreed. The judge’s decision was based on the complexity of the case, including the nature and extent of the plaintiff’s head injury, which was in dispute. There was also disagreement on the symptoms alleged by the plaintiff and their causal connection to the accident. A particularly controversial question pertaining to the plaintiff’s injuries was what role his pre-existing conditions, including a previous stroke, may have played in his post-accident state of health.
Also to be considered were issues about liability and the plaintiff’s life expectancy due to health issues unrelated to the accident. The court heard evidence from the plaintiff’s rehabilitation support worker, occupational therapist, family physician, caseworker, as well as expert opinion from a psychiatrist, neuro psychiatrist and neuropsychologist. Given the myriad of evidence and testimony, the judge allowed that there was potential for error in the interpretation of evidence by the jury.
The right to a trial by jury is a substantive one that cannot be compromised without just cause or persuasive reasons, and the onus is on a plaintiff to demonstrate that justice would be better served by having the case decided by a judge alone. In this particular case, the judge ruled that the plaintiff met his burden of proof and the best course of action was to strike the jury to ensure justice is done for both parties.
Understanding when it is in a plaintiff’s best interests for their case to be decided by jury or judge alone requires a broad understanding and experience in personal injury law. At Rastin & Associates, we have the benefit of years of experience in successfully litigating all manner of personal injury cases and we well understand the legal strategies that are most advantageous in each particular case. If you or someone you love has been injured as a result of another person’s negligence, do not hesitate to call or visit our office today for a no-obligation consultation.
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