Ladies and Gentlemen of the Jury: BC Supreme Court allows jury to hear complex medical practice claims.

Under the Supreme Court Rules in British Columbia, a party to an action may require that the trial be heard by a jury.  The right to a trial by jury is a substantive right of great importance. The courts have consistently held that a party should not be deprived of this right except for compelling reasons. The appropriateness of a jury trial in complex personal injury cases was recently addressed in Rados v. Pannu 2015 BCSC 453.

In Rados, a 34 year old construction worker was injured in a car accident when a taxi driver cut across two lanes of stopped traffic and T-boned him on his passenger side. Experts for both sides disagreed about whether the plaintiff sustained a mild traumatic brain injury, a vestibular injury and the interpretation of the results of numerous medical tests. The parties estimated that a trial without a jury would take 31 days and 40 days without a jury. The plaintiff anticipated calling a total of 37 various witnesses including: a general practitioner, two occupational therapists, one vocational expert, one neurologist, one anaesthesiologist, one otolaryngologist, an orthopedic surgeon, one physiatrist, one neuro-ophthalmologist, two psychologists, one neuro-psychologist, two psychiatrists, one economist, and three physiotherapists. Additionally the plaintiff had produced and served 31 medical legal reports and two economic reports. In total for the trial there were 40 expert reports, totalling over 700 pages of information.

The defendant filed notice requiring a jury trial. The plaintiffs brought an application to strike the notice of jury trial on the basis that a jury could not possibly be expected to understand and make findings of fact for the trial based on the complexity of the medical evidence and issues.

In finding in the defendant’s favour for a jury trial, Justice Fitch cited a trend in the jurisprudence that has been more accepting of the ability of a jury to understand and absorb complicated conflicting medical evidence in personal injury cases. He cites Salehi v Chu 2014 BCSC 2275 in observing that:

Today’s juries are far more sophisticated and better educated than in the past. They are intelligent, conscientious, and bring wide ranging experience from all walks of life. The jury’s collective ability to understand things, to evaluate motives, to analyze probabilities, to determine what is in harmony with human experience, and to reason from evidence to fact and from fact to rational inference, must be with rare exception, at least equal to that of any single individual’s

What is clear from the court’s reasoning is that the judiciary has a high opinion about the relative intelligence of jurors and their ability to absorb and make finds about complicated medical issues. In light of their opinion of the ability of jurors, the court was prepared to find that the nature and magnitude of the complex and controversial issues in this case was not so complex that trial could not be conveniently or fairly heard by a jury, despite the sheer volume and complexity of the medical evidence.

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