Should The Jury Be Asked to Provide Particulars of Defendant's Negligence - Poonwasee v. Plaza., 2018 ONSC 3797

November 23, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Poonwasee v. Plaza., 2018 ONSC 3797

Date of Decision: June 18, 2018
Heard Before: Schreck J.

LIABILITY AND DAMAGES: When should a jury in a negligence action be asked to provide particulars of the defendant’s negligence if they find that such negligence was proven; Should a jury be asked to particularize Defendant’s negligence; Should jury be asked to particularize which injuries were caused by crash

This issue arose in this negligence action arising out of a car accident. Facts of the accident are not in dispute. The defendant did not testify at the trial. The plaintiff called a number of expert witnesses to testify to her injuries. There was some disagreement between experts on whether some of the injuries were degenerative in nature and had begun prior to the accident. There was also some question as to the existence of other injuries.

Counsel initially proposed questions for the jury that included a request that the jury provide particulars of the defendant’s negligence if negligence was proven, and a request that they list the plaintiff’s injuries if they find that the injuries were caused by the action.

During the pre-trial conference, counsel for the plaintiff changed his position and submitted that thosequestions should not be put. Counsel for the defendant took the position that the questions should be put.The questions relating to liability and causation which counsel initially suggested were as follows:

1. Was there any negligence on the part of the defendant, Cecilia Plaza, which caused or contributed to the accident of May 14, 2010? [Followed by boxes which could be checked “yes” or “no”].
2. If the answer to question 1 is yes, please provide particulars: [Followed by space in which the jurors could detail the particulars].
3. Did the motor vehicle accident cause the Plaintiff any injuries?
4. If your answer to question #3 is ‘yes’, please list the Plaintiff’s injuries as a result of the accident: [Followed by space in which the jurors could list the injuries.]

Justice Schreck questioned counsel about questions 2 and 4. They took opposing views of the appropriateness of including them. Justice Schreck then reviewed the law and cases extensively, noting that

Section 108(5) of the Courts of Justice Act provides as follows:

108. (5) Where a proceeding is tried with a jury, (a) the judge may require the jury to give a general verdict or to answer specific questions, subject to section 15 of the Libel and Slander Act; and (b) judgment may be entered in accordance with the verdict or the answers to the questions.
 

And that
 

In Ontario Courtroom Procedure, 4th ed. (Toronto: LexisNexis Canada, 2016), the authors stated: The purpose of submitting questions to the jury is so that the court can examine the particulars of the jury’s findings and ensure that the jury did not ignore an essential issue. This procedure also safeguards against the power of the jury to disregard the law in favour of an emotional verdict.

There is little caselaw on the issue of what types of questions ought be lefto the jury. However, the practice of asking the jury to provide particulars appears to be one of long standing.  It would appear that the practice in Ontario was to ask juries in negligence cases to provide particulars, at least until the Supreme of Court of Canada released its judgment in Beach v. Healey, and in Newell et al. v. Acme Farmers Dairy, Ltd., upon which the Court the relied in Beach, the problem with requesting particulars from the jury was described in the following terms:

The importance of this is that the jury may find itself quite satisfied that the defendant has failed to meet the statutory onus cast upon him. But each of the jurors may have a different ground for so 2018 ONSC 3797 (CanLII) thinking, and it may be impossible for a jury who rightly believe that the accident was caused by negligence to specify exactly in what the negligence consisted.

Both Beach and Newell were cases where the onus of disproving negligence was on the defendant by virtue of provisions of the Highway Traffic Act. It would appear that in cases where the plaintiff had the onus of demonstrating negligence, juries were still asked to provide particulars. It is unclear why the concern about jurors having different grounds for the same conclusion applied in cases where the onus was on the defendant but not cases where it was on the plaintiff.

The review reveals that there are both advantages and disadvantages to requesting the jury to provide particulars. The advantages are the ability to “test” the jury’s understanding of judicial instructions to ensure that the jury did not disregard the law in favour of an emotional verdict. Justice Schreck noted some doubt as to the advantage.  The disadvantages of requesting particulars are that doing so fails to account for the possibility that the jurors may not agree on the reasons for their unanimous decision and that it risks revealing the substance of the jury’s deliberations.

There is also the danger that in attempting to precisely articulate the particulars of findings, the jurors may become distracted from their main task of determining liability and damages. The questions that are to be put to the jury are within the discretion of the trial judge. As there are both advantages and disadvantages to asking the jury to provide particulars, it seems that in exercising his or her discretion in any given case, the trial judge should consider whether the advantages of asking the jury to provide particulars outweighs the disadvantages, and that this will depend on the circumstances of the case.

Justice Schreck concluded that there is nothing in the facts of this case to suggest that there is any need to “test” the jury’s understanding of the instructions on negligence. With respect to the issue of negligence, this was really an instance of res ipsa loquitor. The uncontradicted evidence was that the plaintiff was stopped in the middle of the day next to another car waiting for a red light to change when the defendant drove between the two cars, striking the plaintiff’s car with enough force to push it into the intersection. The defendant led no evidence to explain her conduct. The jury was given the standard instruction on negligence, to which no objection was taken. While counsel for the defendant requested that the jury be asked to provide particulars in order to guard against a “perverse verdict”, it is difficult to conceive of a perverse verdict in this situation that would be prejudicial to the defendant. In my view, in the circumstances of this case the jury’s focus is likely to be on the issues of causation and damages, and nothing would be served by requiring them to articulate the nature of the defendant’s negligence.

With respect to the plaintiff’s injuries, Justice Schreck was not able to see how asking the jury to list them would test the jury’s understanding of the instructions. There was conflicting evidence with respect to the nature and extent of the plaintiff’s back injuries, as well as whether they were caused by the accident. There was no real issue that the plaintiff had significant problems with her shoulders, although the parties disagreed on whether those problem pre-dated the accident. The jury was provided with the standard instructions on causation, again with no objection. Whether the jury listed the back injuries, the shoulder injuries, or both would not provide any insight into whether the jury understood the instructions on causation.

For the foregoing reasons, the questions to the jury will not include a request to provide particulars of the defendant’s negligence or a request to list the plaintiff’s injuries.

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