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A lesson in suppressing the Will of the Jury & leaving them in the dark for car accident cases

Car accident insurers love jury trials.  How do I know this? Because in 99% of the car accident cases I have seen, Jury Notices are filed by the Defendant Insurer. If car insurers didn’t LOVE juries, they wouldn’t file jury notices so often.

What explains the car insurance industry’s affection of Jury Trials?

For starters, Juries are unpredictable. You have no idea if they will favour a Plaintiff, or a Defendant.

Is it because Jurors aren’t paid for their time and will be irritated that they have to miss work without pay sitting on a Jury? That feeling of irritation for being there will weigh negatively against a Plaintiff who brought the claim in the first place.

Is it because Jurors have to pay for parking (at select Courthouses) and gas to get to the Courthouse without getting compensated for their out of pocket expenses? That would weigh negatively against a Plaintiff as well.

Is it because instead of hearing an interesting case like you would see on television (murder, racketeering, drugs); instead they have to hear a car accident case where the main issue in dispute isn’t liability, but rather pain to a Plaintiff’s head, neck, back and shoulders which can get boring and stale pretty quickly. That doesn’t sound like a fun trial to hear at all, particularly if it goes on for a long time. There’s another factor which weighs negatively against a Plaintiff.

In all of these scenarios, a Juror doesn’t know which party filed the Jury Notice. As a result they look at the Plaintiff with extreme distain knowing that it was the Plaintiff’s case has caused them to sit on a Jury in the first place. Essentially, the Plaintiff is seen as wasting the Juror’s time and losing the Juror money when all along the Plaintiff never filed the Jury notice to begin with.

This is the harsh reality of civil jury trials in car accident cases in Ontario. But that reality gets even more harsh.

The will of then Jury is suppressed when awarding damages in a personal injury case.  On top of that, Jurors are left in the dark for car accident cases. 

Take the recent case heard in Orangeville released August 19, 2021 of Rumney v. Nelson, 2021 ONSC 5632

In this car accident case, which was to be heard by a Jury, the Plaintiff sought an Order that that the jurors be advised of the statutory deductible and that an instruction to the jury be given in this regard.

In any car accident case, there is a statutory deductible for damages for pain and suffering. The statutory deductible currently sits at just under $40,000. Let’s call it $40,000 but you can find the exact figure here. 

This statutory deductible acts as a credit to the Defendant. If a jury wishes for a Plaintiff to receive a $50,000 award for pain and suffering; the first $40,000 vanishes into thin air! That’s how the deductible works. The will of the jury for a Plaintiff to receive a $50,000 is usurped when applying the $40,000 deductible.

The Jury is NOT told about the $40,000 deductible. They are intentionally left in the dark! The will of the Jury is not fulfilled when a Jury is not informed about the statutory deductible.

In the Rumney v. Nelson decision, the Plaintiff sought to inform the Jury about the $40,000 statutory deductible.

The Judge in this case held that the Jury should NOT be informed of the statutory deductible and should be left out in the dark (or left to Google act as their legal guide for hearing a car accident case).

In this case, the Judge stated that:

The role of the jury is to decide liability, apportion liability if applicable, and assess damages without regard to the statutory deductible or other amounts that may be deducted.  The jury is not asked to determine how much the plaintiff is to receive.  That is the role of the judge.  The judge takes the assessment of damages and apportionment of liability and applies the law to them to determine the actual amount to be awarded to the Plaintiff.

This begs the question as to why we have Juries in the first place for car accident cases?

In most cases, liability is not an issue.linkedin-2-300x300

When it comes to damages, a Jury is asked to assess damages, yet not asked to determine how much a Plaintiff is to receive? If this is the case, then why is the Jury there in the first place?  The most fundamental relief in a personal injury case is how much compensation the Plaintiff will receive; yet a Jury is not asked to determine how much a Plaintiff will receive? The Jury is only asked to assess damages like they are some legal or actuarial experts on the quantification of damages in personal injury cases?

The Judge went on to add that the rationale for leaving the jury in the dark about the statutory deductible was that “if the jury was aware of the amount of the statutory deductible, or the amount of damages after which no statutory deductible is applied, the jury may be tempted to do some informal grossing up of the damages to take that into consideration.”

This is essentially an admission that the will of the Jury in car accident cases is being suppressed. If a Jury wanted to award a Plaintiff $50,000; shouldn’t that Plaintiff receive $50,000? If the Jury’s will is supreme when it comes to assessing damages; then why aren’t we informing the Jury about the deductible and letting them make up their minds?

In a world where transparency is growing ever so important, why is the Court encouraging secrecy and leaving jurors in the dark? Why is the will of the people in the form of the Jury being suppressed?

It’s quite simple. The system the way it’s currently set up is rigged against innocent accident victims. Plaintiff sided car accident cases are designed to fail once a Jury Notice has been filed. Until we give the Jury all of the facts, and all of the law and allow a open and frank discussion about the deductible inside the Courtroom, innocent accident victims won’t have justice. The will of the jury will continue to be suppressed.




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