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Langley, Surrey ICBC Brain Injury Jury Trial Lawyers

Langley, Surrey ICBC Brain Injury Jury Trial Lawyers 604-576-5400

An injured victim suffering a Surrey, Langley or Vancouver ICBC brain injury accident can select trial by jury for their traumatic brain injury. The right is not absolute and a jury trial notice can be struck under certain circumstances and the brain injury case heard by a judge alone. Our top lawyers would be pleased to explain when a jury trial is right or wrong for your brain injury case.

A recent BC Court of Appeal ICBC brain injury case restated the principles in deciding whether a judge or a jury is ion a better position to decide you or your family member’s traumatic brain injury case. Deciding whether a jury trail is right for you is a huge decision that needs the focused assistance of our lawyers to ensure your traumatic brain injury damage award is maximized for you and your family. Surrey ICBC Brain Injury Jury Trial Lawyers Explain Striking A Jury Trial Notice

Surrey ICBC Brain Injury Trial Lawyers 604-576-5400

Langley, Surrey ICBC Brain Injury Trial Lawyers 604-576-5400

 [1]           D. SMITH J.A.: This appeal raises the issue of whether the chambers judge in the court below erred in striking a jury notice filed by the defendant appellants in a damages action brought by the respondent Daniel Wallman.

[2]           The action arose out of a motor vehicle accident in which the vehicle operated by the respondent was rear-ended by a bus operated by one of the appellants. The respondent alleges that he suffered serious injuries in the collision, including a mild traumatic brain injury that has prevented him from continuing to work as an emergency room physician. The appellants deny liability and allege the respondent suffered from pre-existing issues, and that the minimal force of the collision could not have caused the injuries alleged.

[3]           In support of their respective positions the parties propose to tender records and reports from at least 23 experts, including medical and other health care professionals, employment, actuarial, and engineering experts, as well as some 31 civilian witnesses. The trial is expected to last about seven weeks.  

[6]           After summarizing a number of the opinions contained in the reports of both the appellants’ and the respondent’s expert witnesses, the chambers judge found that the “scientific investigation” required for the trial could not be made conveniently with a jury. He therefore struck the jury notice, reasoning:

  • [57]      The issues will also require careful consideration of scientific evidence by the jury. In my view, that scientific      investigation cannot conveniently be undertaken by a jury. The trier of fact in this case, as in Gulamani, [Gulamani v. Chandra, 2009 BCSC 1042] will have to consider evidence going to many issues over a protracted period. It may be necessary to retain fine detail from the examination in chief and cross-examination of many witnesses on multiple issues for weeks before those issues are traversed by defence witnesses. Considered on their own, most, but not all, of the expert reports in this case may be understood by a jury in light of the full examination in chief and cross-examination of the experts, but retention of that understanding over several weeks is likely to be so difficult, in my view, that fruitful analysis at the end of the day may be impossible. 
  • [58]      The jury notice will, therefore, be set aside and there will be an order that the trial of this case will be heard by judge alone.

[9]           In this case, the chambers judge found that the issues for trial will require a scientific investigation. This is a factual determination for which deference must be accorded absent palpable and overriding error, which is not alleged. In the exercise of his discretion, he found that the scientific investigation into the proposed evidence could not conveniently be undertaken by a jury. In reaching that conclusion, the judge was satisfied that a proper review of the evidence and the legal issues could not be ensured by a jury that would be required to understand and retain opinion evidence from a large number of expert witnesses over a protracted period of time.  [11]        In Wipli v. Britten, Chief Justice McEachern (in Chambers) considered the meaning of the term “convenience” in what is now R. 12-6(5)(i). His comments continue to be referred to on this issue: [27]      Convenience, in the sense in which that word is used in the rule, does not depend solely upon whether or not the jury can be made to understand the evidence. … What is required before it is convenient to have a scientific investigation made with a jury is the ability to have a proper trial, which includes not just an understanding of the evidence as it is being given, but also an ability to retain this understanding throughout a long trial in a form which permits an analysis of the evidence in relation to the difficult questions which must be decided at the end of the case. [12]        The chambers judge also relied on Gulamani v. Chandra, 2009 BCSC 1042, in support of his decision. Gulamani involved an application to strike a jury notice in similar circumstances. There, the chambers judge in striking the jury notice relied on the earlier comments of Chief Justice McEachern in Dunne v. Kokan, [1982] B.C.J. No. 1519 (S.C.) (in Chambers), where he stated: [7]        In view of the foregoing I have a discretion to order that the trial be heard by a Judge without a jury, and I so order because, in my respectful view, all parties have a better chance of a satisfactory trial by Judge alone, notwithstanding the presumed superior “wisdom” of a jury. Wisdom is not the question. It is rather a question of managing facts and issues for which a trial by Judge alone is more suitable in a case such as this. [Emphasis added.]

  • [13]        These decisions, in addition to many others, demonstrate the type of considerations that must be weighed when faced with an application to strike a jury notice. The management of a proposed civil jury trial requires the judge to ensure, as best as he or she can, that all who are involved, including the parties, their counsel, the potential jurors and the trial judge are able to satisfactorily perform their respective duties and responsibilities in order to meet the common objective of a fair trial.

[14]        In this case, the chambers judge applied the correct legal test under R. 12-6(5) for the striking of a jury notice and in my view cannot be said to have erred in the exercise of his discretion in striking the jury notice in order to ensure the proper conduct and management of the trial of this action. Accordingly, I find no basis upon which this Court might interfere with the order and therefore I would dismiss the appeal.  

Our Surrey ICBC Brain Injury Jury Trial Lawyers Explain Striking A Jury Trial Notice to our clients regularly. There are cases where it is better for you to have a jury decide the issue and others where a jury trial is a huge mistake. Get the information you need at our free initial consultation.



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