The Court of Appeal has effectively eliminated the ability to strike a jury on the grounds of complexity, length and multiple conflicting medical opinion (Rados v. Pannu,2015 BCCA 459). The claimant was injured in a car accident and applied unsuccessfully to strike a Jury Notice filed by the defendants insurance company for a complicated 2 month trial.
The parties at the application took the view that about six and a half weeks of trial time will be required for this matter, if it proceeds without a jury. However, estimates of about eight weeks had been given if the trial proceeds with a jury. Liability, causation, diagnosis and prognosis were all in issue.
The claimant anticipated calling 19 expert witnesses and 14 lay witnesses, including: a general practitioner; two occupational therapists; one vocational expert; one neurologist; one anaesthesiologist; one otolaryngologist; one orthopedic surgeon; one physiatrist; one neuro‑ophthalmologist; two psychologists; one neuro-psychologist; two psychiatrists; one economist; and three physiotherapists.
The claimant served 31 medical‑legal reports and two economic reports. The defendants had seven medical‑legal reports prepared by an otologist, orthopedic surgeon, forensic psychiatrist, vocational consultant, and occupational therapist. In total, there are 40 expert reports, totaling over 700 pages.
The claimant alleged that the accident caused a number of injuries, including: mild traumatic brain injury; vestibular injury; musculoligamentous sprain; and major depressive disorder.
The trial judge did concede that this will be a “hard” case for the jury to decide, but allowed it anyway. As for the Court of Appeal this is all they had to say substantively on the matter:
[30] …The analysis does not begin and end with adding up the number of experts and medical issues or the number of pages of documents or the length of trial. Those factors may be indicative of whether the trial may be conveniently heard with a jury, but they are not necessarily the last word…
Most jury notices in BC are filed by the Insurance Corporation of British Columbia, ICBC, on behalf of at fault and insured drivers, in my experience as a personal injury lawyer.
The clear upsides are: (1) trials will require a lot less work for judges as they will no longer be required to write long involved judgments which analyse facts and law; (2) the jury verdicts will have less precedent value, no public written decisions, and lawyers can better direct their efforts to advocating for clients not reciting case law; and (3) the public through the jury will set the value of pain and suffering.
On the clear downside, ICBC can use legislated monopoly to influence attitudes toward injury claimants on a macro scale: Province wide corporate marketing and advertising; ICBC top fraud files controlling the message; and ICBC driver and pedestrian safety giving credibility to ICBC. This messaging is exemplified in ICBC reporting to the public regarding the real cost of personal injury claims.
The landscape for the future of the personal injury jury trial in BC will be carved by ICBC and only ICBC, short of Rules reform. As the only auto insurance monopoly in town, they are the only ones that can afford such expensive escapades into social engineering.
Posted by ICBC Claims Lawyer Mr. Renn A. Holness, B.A. LL.B.– Working only for the injured not ICBC or any or insurance company.