During the opening statement to a jury in a personal injury case the defence made several objections. After the jury left the courtroom, no less than 5 objections to the opening were made to the judge.
All objections were essentially dismissed except one, which resulted in additional instructions being made by the Judge to the jury. The personal injury lawyer for the claimant told the jury that they should consider the effect the injuries have had on the family, stating:
“Nothing can change the effect her injuries have had on her family”.
The claimant’s lawyer agreed that the effect on the family was not a compensable item unless it affects the claimant and if she knows her injuries have affected her family, this then is part of the award for general damages. The judge therefore reinstructed the jury as follows:
“Yesterday, you were provided with a great deal of information on your role as a juror. I want to emphasize that what counsel says during their opening and closing addresses are not evidence and you cannot rely on what was said to prove any of the facts that you have to decide in this case. I want to clarify one comment made during the opening statement of the plaintiff’s counsel. He made references to “injuries on her family” and I want to clarify the only claim being made in this case is on behalf of the plaintiff and her injuries and losses. There is no claim made on behalf of her family.”(Wark v. Kang,2018 BCSC 2019)
This Supreme Court Judge quoted from one of the seminal cases on opening statements, Brophy v. Hutchinson, 2003 BCCA 21:
 The opening’s purpose is to outline the case the party bearing the onus of proof (usually the plaintiff) intends to present. Counsel’s goal in opening is, or should be, to assist the jury in understanding what his or her witnesses will say, and to present a sort of “overview” of the case so that the jury will be able to relate various parts of the evidence to be presented to the whole picture counsel will attempt to present.
 The right of a plaintiff to open is a considerable advantage. It enables counsel to explain in a few minutes a case which may take days or weeks to develop in evidence, and to state her case in a way most favourable to her client’s interests. The opening can give the trier of fact a framework within which to understand and to evaluate the plaintiff’s case as it unfolds. For the party bearing the burden of proof, this can be a most useful tool.
Posted by Mr. Renn A. Holness, B.A. LL.B.