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Personal Injury Lawyer Not Permitted to Guide Jury on the Value of the Claim for Pain and Suffering


 This is a good opportunity to review some basics on how your ICBC personal injury claim may be presented in front of a jury.  In British Columbia any party to a lawsuit involving personal injuries can ask the court for a jury.  A jury can be refused if the court thinks that the case is too complex or lengthy.  Generally speaking however if ICBC or the injury claimant wants a jury it is hard to convince a judge otherwise.
What most people do not know is that  in front of the jury your personal injury lawyer cannot tell the jury what you think is a fair value for your pain and suffering. In fact the judge hearing the case also is not allowed to  give the jury his or her opinion and must leave it up to the community wisdom of the jury.
 The Court of Appeal in Brisson v. Brisson stated, “I adopt the following statement from the Ontario Court of Appeal in Howes v. Crosby (1984), 45 O.R. (2d) 449 (Ont. C.A.), at 460: 

 . . .  as long as we accept the jury as part of the trial system and the trier of fact in this area of the law, they should be left free from the “guidance” of the opinion of the particular judge as to the appropriate range for their awards, even though he makes it clear his opinion is not binding on them.

The law in British Columbia is that juries are not to be instructed about other cases that might be thought by the judge or by personal injury lawyer to be similar. The whole system is designed so that the jury will bring a fresh and uncluttered judgment to bear on the assessment of damages. Supposedly, litigants exercising their right to have their cases tried by a jury are entitled to the jury’s verdict uninfluenced by anything extraneous to the evidence, such as the value of other similar cases.  The very purpose of having a jury on a personal injury case is to bring into the courtroom the standards and the common sense of the community.
However, I reviewed a personal injury case recently in which the Court of Appeal disagreed with the Jury award of  $385,000.00 and reduced it to $225,000.00.  If the very purpose of a jury is to  bring into the courtroom the  common sense of the community why should the Court of Appeal be permitted to reduce, or in some cases increase, the money  award?  This area of the law is struggling to justify keeping or changing and old rule that has now become the law.  It may be the only solution is to have the politicians involved so the law can be clarified one way or the other.
  I note that the only exception to this rule of not telling juries about other similar injury cases is for catastrophic injuries. In those cases the cap on the claim for pain and suffering can be mentioned to the jury. The cap is increased yearly to take into account inflation and the current cap is about  $330,000.00. See my article about valuing pain and suffering. Posted by Mr. Renn A. Holness
Issue: The the jury in a personal injury case be instructed about other cases thought by the judge or by personal injury lawyer to be similar?

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