January 22, 2010 by Canadian Underwriter
Is a jury capable of assessing damages in cases involving multi-accident scenarios, overlapping injuries and complicated medical evidence?
The Ontario Superior Court was asked to consider the question in Hossny v. Belair Insurance, a complicated case in which an insured was injured in three separate motor accidents between 1997 and 2004, the first of which led to a trial before a judge.
The judge’s decision on damages in the first accident was rendered just one month prior to the insured’s second accident. Prior to the trial related to the second accident, the plaintiff’s lawyer asked the court to strike a request for a jury.
Counsel for the injured victim, Galal Hossny, argued that the facts and issues relating to his client’s second claim were too complex for assessment by a jury.
Hossny’s lawyer, Murray Miskin, said the injuries Hossny suffered in his second accident on Jan. 13, 2002, both physical and psychological, completely overlapped injuries suffered in the first accident on Nov. 22, 1997.
Miskin argued a global assessment of damages in the first two accidents and apportionment to each accident would be required according to case law established by the Ontario Court of Appeal.
Miskin also argued that the judge’s reasons for decision in the first case would have to be considered by the court in assessing the plaintiff’s claim in this action; for a jury to do so would be difficult and create issues of prejudice, he argued.
In contrast, counsel for belair submitted that:
• the decision of the judge in the first case was not relevant;
• a global assessment of the injuries would not be needed; and
• a jury could determine Hossny’s condition immediately before the (second) accident in question and determine if his condition was aggravated by the accident or not and, if so, assess damages.
belair argued that Hossny is no different from any other case in which there is a pre-existing condition. Therefore, the matter was not too complicated for a jury to decide.
Ontario Superior Court Justice Nancy Spies did not decide the matter one way or another. Instead, she offered a number of possibilities in which either a judge or a jury might hear the matter, depending on the caselaw used and further (forthcoming) evidence about the damages claimed.