While the right to have a jury hear a trial may be a cornerstone of our judicial system, this is not necessarily an advantage. In personal injury litigation, when a jury is required to listen to weeks of evidence, and make a decision regarding the plaintiff’s damages, it may not be beneficial to have a jury hear the trial. The jury may not understand all of the evidence presented. They may also choose to ignore some of the evidence. There are also no standards that a jury’s decision must currently satisfy, in Ontario, to ensure that the jury is properly “doing its job.”Given these difficulties, jury trials are likely unsuitable for personal injury litigation.

Jurors are not medical experts. In all likelihood, they are not accustomed to reviewing and assessing medical evidence on a regular basis either. Yet civil trials involving personal injuries often require jurors to listen to extensive medical evidence from multiple expert witnesses. It is certainly possible that a jury will not understand some of the medical evidence, given the complex nature of the evidence, and then choose to ignore it. This concern is certainly pertinent for cases involving chronic pain injuries. An injured plaintiff’s experiences of suffering chronic pain may very well be influenced by neurological and psychological factors, which commonly require expert opinion to explain. There is presently no requirement that a juror sufficiently understand such complex medical explanations, nor that they properly assess this evidence.

An additional concern is that the jurors may not be particularly motivated to undertake this task of carefully assessing the medical evidence. They are more or less being forced to take time out of their lives, against their will, to perform this civic duty of participating in a jury trial. Civil trials commonly last for a duration of weeks. The jurors may resent the impact that this process has taken upon their personal life, and then they will hold the plaintiff accountable to some degree, for interfering with their personal life. This interference may affect the decision that the jurors make, regarding the outcome of the trial.Contrast this scenario of having potentially unmotivated and resentful jurors responsible for reaching a verdict in a civil trial, with the obvious choice of having a judge responsible for assessing the case. In fairness to the plaintiff, a judge is both better qualified, and better motivated to properly assess the plaintiff’s case. In Legroulx v. Pitre, the Ontario Superior Court similarly remarks that judges are better suited than juries to consider the circumstances surroundinga case, given their expertise in dealing with difficult legal and factual issues. Conversely, fairness to the plaintiff cannot be maintained when a jury is responsible for reaching a verdict in a complex civil trial.

Another decision addressing the jury’s ability to assess a case is Placzek v. Green. In Placzek, the OntarioSuperior Court’s decision to strike the jury was upheld by the appellate court. The jury was struck based upon the complexity of the case. The court acknowledged the complexity of the evidence, which included competing medical, engineering and biomedical evidence.The jury was also required to factor in the plaintiff’s pre-existing medical condition, and the relevance of that prior condition when assessing the ongoing medical symptoms. Additionally, there was competing evidence for the plaintiff’s income loss, and loss of future income.

Another decision in which the jury’s qualification to properly assess the plaintiff’s case waschallenged is Kwok v. Abecassis. In Kwok, the Ontario Superior Court was required to assess the plaintiff’s traumatic brain injury. The court’s decision to strike the jury was partially motivated by the complexity of the evidence. Moreover, the nature and extent of pre-existing injuries were also in dispute. The court also expressed concern that the jury must be able to understand all of the evidence which is presented at trial. Medical evidence can be quite technical and scientific in nature, and thus challenging for jurors to (a) comprehend;(b) remember; and (c) fairly assess. The court also acknowledged the obvious practical concern that the longer the trial, and the more complex the evidence, the more difficult it will be for the jury to retain the medical evidence.

If medical evidence is potentially difficult for jurors to comprehend, a further concern is that the jury may not put adequate weight upon the medical evidence in assessing the plaintiff’s injuries. In contrast, the jurors could rely heavily upon surveillance evidence because it is much easier to comprehend. It almost goes without saying that there is a real danger that the surveillance evidence does not accurately represent the plaintiff’s injuries and their symptoms. How can video surveillance possibly provide an accurate portrayal of the psychological, or neurological effects of chronic pain, or a significant head injury? In Landolfi v. Fargione, the Ontario Court of Appeal acknowledged that video surveillance evidence can have a powerful impact. The danger is that jurors will be more easily persuaded by this type of evidence, rather than make a sufficient attempt to comprehend and properly assess complex medical evidence,which may be beyond both their comprehension and their attention span.

Anadditional concern is that jurors, along with the process through which they arrive at their decisions, are not presently held to any particular standard in civil trials. If the jury completely ignores cogent medical evidence presented at trial, because they didn’t understand it, there’s nothing wrong with that.If the jury arrives at an illogical, and internally inconsistent decision, there’s nothing wrong with that either in Ontario.The standard is different in British Columbia, where arguably some progress has been made to improve the fairness of jury trials in civil litigation. At the very least, juries in Ontario should be held to a minimal standard that requires them to reach logically consistent decisions.

A number of cases from British Columbia demonstrate the need for a jury’s decision to meet a reasonable standard for logical consistency. In Kalsi v. Gill, litigation before the Supreme Court of British Columbia involved a 10-day jury trial arising out of a motor vehicle accident. The jury awarded the following:

– $0 for non-pecuniary damages, future pecuniary damages and loss of homemaking capacity
– $12,000 in past wage loss
– $8,000 in special damages

The plaintiff appealed the decision on the grounds that “the jury’s verdict was internally conflicting and perverse.” Justice Weatherill subsequently ordered a retrial. In arriving at his decision, Justice Weatherill states, “While the court should strive to give effect to a jury’s verdict, it cannot do so where the jury’s verdict is internally in conflict.” To elaborate upon this internal conflict, Weatherill J. references the jury, and says “it was not open to them, after making the findings as they did regarding special damages and past loss of wages, to fail to make any award for non-pecuniary damages. Such a result was inconsistent.” Weatherhill J. further explains, “It is illogical to conclude that a plaintiff was injured and suffered past wage loss and special damages but did not sustain any pain, suffering, or loss of enjoyment, no matter how transient.”

In Fast v. Moss,litigation arose out of injuries resulting from a motor vehicle accident.The jury decision noted that the plaintiff suffered a loss of capacity to do household and yard duties, but awarded $0. The jury also decided that the plaintiff’s capacity to earn an income was not compromised at all. Because of the resulting inconsistency, the British Columbia Court of Appeal orders a new trial.

The use of jury trials in civil litigation is certainly not maintained to promote fairness for the plaintiff in my view. The danger remains that the jury will not adequately understand the evidence. There is also no requirement that a jury’s decision reflect a sufficient understanding of the evidence, or even that there is logical consistency within their decision. If anything, these may benefit the insurer, not the injured party. Similarly, in Ontario,the jury is not to be informed when an insurer shall pay the plaintiff’s claim for damages, rather than the individual defendant. Also,the jury is not informed about the deductible in personal injury litigation involving a motor vehicle accident. Arguably, a jury’s involvement is only a tool that inhibits fairness for the plaintiff. But this is a slightly different discussion, for another day.

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October 16, 2019

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