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Surrey ICBC Lawyer Explains Jury Trial and Cause of Injury

Please contact us now with your questions or call us direct at 604-576-5400 or toll free at 1-877-602-9900. Surrey MacLean Personal Injury and ICBC claim lawyers want the public to be aware of the great responsibility given to BC jury members when they decide a personal injury case arising from a car accident. Parties who are injured can also expect their credibility to be attacked, including arguments that their injuries or pain arose from some cause other than the car accident. Presenting evidence in Court is a complex process and is also subject to rules of admissibility.

Further, it is very important that clients disclose ALL of the facts and ALL of the surrounding circumstances of their case to their lawyer so that she can determine, confidentially, the best strategy. It is important that the jury fully understand how the circumstances are actually connected.  (Especially where there is an alternate explanation to circumstances and situations that may at first seem “obvious.”) Because of the complexity of ICBC Accident & Injury claims and procedures we recommend that you contact our experienced lawyers immediately after having obtained medical attention, but before you discuss your case with anyone. We are available 24/7 at 1-877-602-9900.

The recent ICBC jury trial Appeal of Bialkowski v. Banfield, reconfirmed the respect an appellate court gives to a personal injury trial decision, and the importance of full disclosure of case circumstances to your lawyer. The following are the most relevant excerpts from the case:

“[11] The respondent admitted liability; the appellant’s case proceeded to a jury trial on damages. The jury rejected the appellant’s contention that he suffered injury or loss as a result of the motor vehicle accident. The appellant asserts that “[t]he evidence as whole does not support the jury’s finding…”.


[12] The parties recognize that this Court must give considerable deference to jury verdicts. They refer to McCannell v. McLean, [1937] S.C.R. 341 and agree on the proper approach that should be taken by this Court when reviewing a jury verdict. In his factum, the appellant states his position as follows:

The plaintiff appeals from the jury’s decision that the plaintiff was not injured in the motor vehicle accident of March 12, 2007 on the grounds that no jury, properly following the instructions of the Learned Trial Judge and reviewing the evidence as a whole, could have reached that verdict and as such, the verdict is perverse and contrary to uncontradicted evidence that the plaintiff did suffer injury in the accident.

[13] Where the Court is satisfied that no jury reviewing the evidence as a whole and acting judicially could have reached that verdict, the verdict shall be set aside (McCannell at 343). This general standard of deference to the findings of a jury was re-affirmed by the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 30.

[14] Referring to English authority, the Court in McCannell characterized the task as determining whether the jury has performed its judicial duty.

[15] The Supreme Court of Canada in Olmstead v. Vancouver-Fraser Park District, [1975] 2 S.C.R. 831 at 839, 51 D.L.R. (3d) 416, echoed the comments in McCannell, and added the following:

All of the relevant cases make it abundantly clear that jury verdicts must be treated with considerable respect and must be accorded great weight. This does not mean however that they should be regarded with awe. In the case at bar, the evidence examined as a whole, in my view, did not permit a jury acting judicially to reach the conclusion that the appellant was negligent.
[16] The appellant relies on the fact that he went to his family doctor, Dr. Stevens, two days after the accident as uncontradicted evidence supporting the fact he was injured in the accident. He refers to Olmstead at 839:

There is no doubt that the jury are entitled to believe certain witnesses and disbelieve others. They also have the right to choose only part of the evidence of any witness. These rights belonging to the jury permit them to discard plaintiff’s own evidence on facts, about which other relevant evidence is adduced, at variance with his own. However, these rights do not extend to that area where only plaintiff is in a position to testify, e.g., what he knew of the area where the accident took place and what he expected to find at that location.
[17] In my view, while a jury cannot ignore such evidence, it may choose to disregard it if the overall credibility of a party results in the jury concluding it does not believe anything the party states. This was succinctly stated by Madam Justice Southin, as she then was, in Le v. Milburn, [1987] B.C.J. No. 2690 (QL) (S.C.):

When a litigant practises to deceive, whether by deliberate falsehood or gross exaggeration, the court has much difficulty in disentangling the truth from the web of deceit and exaggeration. If, in the course of the disentangling of the web, the court casts aside as untrue something that was indeed true, the litigant has only himself or herself to blame.

[25] A major thrust of the respondent’s case was an attack on the credibility of the appellant. Evidence was adduced of long-term, pre-existing medical issues and personal difficulties the appellant had been obliged to face over the years. The surveillance video showed him undertaking physical activities that were not compatible with his claimed injuries. It was supplemented by YouTube videos to the same effect.

[26] The appellant presented evidence that he has medical difficulties, both physical and mental. The difficulty is that the appellant was obliged to satisfy the jury that the injuries were caused by the accident. There was evidence that these difficulties were more severe manifestations of pre-existing problems. Although he presented a potentially persuasive case that he was injured as a result of the accident, the jury did not accept it. The respondent mounted an apparently successful, serious attack on the appellant’s case aimed extensively at his credibility.

[27] I have reviewed the litany of medical evidence as canvassed by the parties. A trier of fact could have concluded that the accident caused compensable injury to the appellant, but it certainly was open to the jury to conclude otherwise. In my view, there was evidence on which the jury rationally could reach its verdict. I do not think there is a basis in this case for this Court to interfere with the weight given by the jury to the evidence overall.


[28] I would dismiss this appeal.

“The Honourable Mr. Justice Chiasson”

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