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Particulars or No Particulars: That is the Question

 Jul 6, 2018 2:00 PM
by Laura Emmett

The question of whether the jury in a negligence action is required to provide particulars of any finding of the Defendant’s negligence was considered by the Court in Poonwasee v. Plaza. After reviewing the relevant case law, the Court found that there was no such obligation.

The action arose as a result of a motor vehicle accident. Initially, Counsel proposed that the jury questions include a request that the jury provide particulars of the Defendant’s negligence, if there was a finding of negligence. Further, Counsel had proposed that the jury describe the Plaintiff’s injuries if they found that there were injuries caused by the accident. However, during the pre-trial conference, Counsel for the Plaintiff changed his position and did not want the questions to be submitted to the jury.

The Court noted that section 108(5) of the Courts of Justice Act provided that the Judge may require the jury to give a general verdict or answer specific questions. However, the Court noted that there was little case law with respect to the type of questions that ought to be left to the jury. Upon reviewing the case law, the Court acknowledged that there were both advantages and disadvantages to requiring a jury to provide particulars. The advantages were that (1) it allowed for the opportunity to “test” the jury’s understanding of the Court’s instructions; (2) it ensured that the jury did not disregard the law in favour of an emotional verdict; and (3) it concentrated the jury’s mind. 

The disadvantages were that (1) it failed to allow for the possibility that the jurors may not agree on the reasons for negligence; and (2) it risked revealing the substance of the jury’s deliberations. The Court also noted that there was a danger that by attempting to precisely articulate the particulars of their findings, the jurors may become distracted from their main tasks of determining liability and damages.

The Court found that the questions put to a jury are within the discretion of the trial judge. In making this determination, the trial judge should consider whether the advantages of asking the jury to provide particulars outweighs the disadvantages. This will depend on the circumstances of the case.

In the present case, the Court found that there was nothing to suggest a need to “test” the jury’s understanding of the instructions on negligence. In fact, the issue was not complex as the Defendant did not lead any evidence to explain her conduct. As such, it was likely that the jury’s focus would be on the issues of causation and damages, not liability. The Court found that nothing would be served by requiring the jury to articulate the nature of the Defendant’s negligence. With respect to the Plaintiff’s injuries, the Court was unable to see how asking the jury to list the injuries would test the jury’s understanding of the judicial instructions. There was conflicting evidence regarding the extent of the injuries. The Court noted that the jury was provided with the standard instructions on causation without objection. Particulars were not required in light of the specific circumstances of the case.

As a result of this decision, parties should not automatically assume that jurors are going to be required to provide particulars on negligence or the nature of the injuries. The parties need to consider whether the benefits of asking for particulars outweigh any disadvantages of same.

Poonwasee v. Plaza, 2018 ONSC 3797 can be found here.


Laura has a diverse practice where she focuses on accident benefits, bodily injury claims, product liability, cyber liability, privacy law and drone liability. Read more ...


  

 

 
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