Should the jury be struck in this personal injury case?

May 12, 2016, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Mr. Joseph Foniciello (plaintiff) was struck from behind by a minivan while riding his motorcycle through a construction zone on August 19, 2006. Mr. Foniciello sustained injury, was hospitalized for a long period of time and has significant brain injury. Mr. Funiciello’s claims include general damages, special damages, Family Law Act damages, past lost income, future lost income, and future care costs.  Mr. Foniciello alleges negligence against Ms. Bendall (defendant), and the construction company Acculine in particular for having inadequate traffic control or signage in place on the work site at the time of this accident. Acculine denies that it was negligent, and denies that it did, or omitted to do, anything that caused or contributed to this accident. The severity of Foniciello’s injury, and all aspects of the damages claimed, is in dispute.

A motion brought before the court by the plaintiff to strike the jury notice served by the defendant was considered by Justice Henderson. The plaintiff noted that the issues of the case are too complex to be considered by a jury, and that they would be better served by a trial by judge. The defendant is requesting a ‘wait and see’ approach, with an alternative that would bifurcate the trial with liability and damages to be tried by jury, and the balance of the issues to be tried by the judge.

The Judge began by considering the law regarding striking a jury notice. He considered the law and previous cases and noted that a succinct and sensible test exists:

If a litigant is entitled to trial by jury, that right is a substantive one which should not be interfered with without just cause; King v. Colonial Homes Ltd. et al., 1956 CanLII 13 (SCC), [1956] S.C.R. 528, at 533; 4 D.L.R. (2d) 561.  When a trial judge is asked to discharge a jury, she or he must decide whether justice to the parties will be better served by the discharge or retention of the jury.  The moving party bears the burden of persuasion and must be able to point to features in the legal or factual issues to be resolved, in the evidence, or the conduct of the trial, which merit the discharge of the jury: Majcenic v. Natale, 1967 CanLII 267 (ON CA), [1968] 1 O.R. 189, at 201-202; 66 D.L.R. (2d) 50 (Ont. C.A.)

The Judge noted that in this case there is not dispute as to the law, only that the plaintiffs claim issues to be considered are so complex that they are not appropriate to be considered by a jury. With respect to the damages issues there exists a great deal of scientific evidence. The Judge agreed that without a full education of the brain function and damage most jurors will not be able to make a full assessment of the evidence. The Judge accepted it is a formidable task to educate the jurors to that level. Given the dispute of the extent of the brain injuries sustained there will be a great deal of conflicting evidence presented by the experts at the trial in which case it will be necessary for the jury to acquire a proper foundation of knowledge, and then use that knowledge to assess the evidence of competing experts. 

Acculine submitted that juries regularly hear and determine brain injury cases.  However the Judge did submitted that due to the complex nature of the case and injury it would be too risky to leave the assessment of damages to the jury. The damages, including claims for rehab, income loss and future care costs are carefully calculated and laid out. Adjustments to the quantum of benefits awarded by the jury may not reflect reality of damages. The Judge also noted that on the income loss claim the trier of fact may have to deal with the issues of Foniciello’s CPP Disability Benefits, Foniciello’s LTD benefits, and Foniciello’s settlement of his accident benefit claim, some of which was placed in a structured settlement.  These assessments of damages will be extremely complex for a jury.

On this basis the Judge found that justice will be better served if the damages issues were tried by a judge; not a jury.

Acculine requested a wait and see approach regarding the request to strike the jury notice because in some cases the anticipated complexities in a case never materialize at trial. The Judge noted that it is accepted practice that if there is no advantage to be gained by waiting, the decision with respect to striking the jury notice should be made in advance of the trial.

The Judge noted that the damages issues in this case are unduly complex.  He noted that the case will not become simpler at trial, and on that basis the Judge would not take a wait and see approach in this case.

Acculine suggests bifurcating the trial, letting the jury decide the liability issues and some of the damages issues, and removing the more complex damages issues from the jury. The Arbitrator determined that it would not be sensible to permit the jury to try some of the damages issues and not the other damages issues.  All of these damages issues are related to one another. 

The Judge found that the liability issues in this case lend themselves to a trial by a jury.  The plaintiffs allege that this motor vehicle accident had two causes; the negligence of Bendall, and the negligence of Acculine.  A jury could easily be asked to decide the liability questions.  Specifically, a jury could be told to assume that Bendall was at least partially responsible for the accident, and then the jury could be asked if there was any negligence on the part of Acculine that caused or contributed to the accident. If so, the jury could be asked to apportion liability between Bendall and Acculine.

Plaintiffs’ counsel submits that a jury should not try the liability issues primarily because it is anticipated that Foniciello will testify on the liability issues.  It is submitted that a jury needs to be fully educated as to Foniciello’s injury in order to assess his evidence.

The Judge did not find this objection as a problem.  It is clear from Foniciello’s examination for discovery that Foniciello has no information as to how the motor vehicle occurred, and he has no memory of the accident or the events leading up to the accident.  Also, if Foniciello appears to be slow or unresponsive on the witness stand, this court would certainly permit counsel to lead evidence of a general nature of his brain injury in order to explain his manner on the witness stand. For these reasons the Judge is prepared to allow the jury to try the liability issues.

On the basis of the above the Judge ruled that the plaintiffs’ motion to strike the jury notice will be allowed in part. The trial will be bifurcated so that the liability issues will be tried by a jury.  The damages issues will be tried by a judge alone, at a time to be scheduled after the jury has determined the liability issues.

Posted under Personal Injury, Brain Injury, Motorcycle Accidents, Spinal Cord Injury

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit or call us toll-free at 1-866-414-4878.

The opinions expressed here, while intended to provide useful information, should not be interpreted as legal recommendations or advice.

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