|March 19, 2014|
Previously published on Winter 2014
Of late, juries in Nova Scotia have taken quite a beating. Over the past couple of years, courts have been more and more likely to strike jury notices on the basis that the issues are too complex for the average citizen. Despite the view that juries are simply not as equipped to handle complex legal claims as a judge, recent experience with a jury trial proved otherwise.
The case of Andrew Sabean v. Portage La Prairie Mutual Insurance Company involved a claim by Mr. Sabean under SEF 44 of his policy of insurance with Portage. SEF 44, often known as the Family Protection Endorsement, provides additional coverage to an insured over and above an insurance coverage that an at-fault driver may have, up to the limits of the insured's own policy.
In Sabean, the Plaintiff and his then common law wife, Cathy Hallett, were involved in a motor vehicle accident. The at-fault driver's insurance company settled at the policy limits for $500,000. Mr. Sabean received approximately $400,000. He subsequently brought a claim against his insurer, Portage, on the basis that he had $1 million of coverage with Portage and his damages exceeded the $500,000 limits of the at-fault driver.
In the general course, if the SEF 44 insurer was required to respond to a claim, it would be because damages assessed against the at-fault driver exceeded the at-fault driver's insurance limits. However, in Sabean, as the at-fault driver's insurance company had settled for policy limits before trial, the value of Mr. Sabean's injuries had never been determined. As such, it was assumed that the trial would proceed by way of an assessment of damages claim with the jury assessing damages and the judge then making any allowable deductions as per the SEF 44 policy. However, prior to proceeding to trial, Plaintiff's counsel requested they be allowed to advise the jury of the amount of Mr. Sabean's prior settlement. Not surprising, counsel for Portage objected, arguing any reference to a prior settlement would prejudice the jury and create the presumption that Mr. Sabean's injuries should be valued at an amount greater than $400,000.
Immediately following the accident, Mr. Sabean complained of pain in his neck, shoulders, and into his left arm. As time progressed, the arm became more painful and swollen. Eventually, the left arm was amputated above the elbow. As a result, Mr. Sabean was unable to continue as a farm labourer.
The matter was heard in Halifax over a nine day period. The jury was composed of five women and two men and their professions ranged from a store manager to an accountant.
Complicated evidence was presented at trial about the cause of Mr. Sabean's arm amputation. The three experts who testified could not agree as to the exact medical condition leading to the arm amputation, nor could they agree as to what precipitated the medical condition in the first instance. In addition to complicated medical evidence, there was complex testimony as to future care costs and actuarial assessments of income loss. Despite the complex nature of the evidence, the jury was attentive and engaged throughout the process.
After deliberating for just over four hours, and right before the jury was about to be called back to be advised that they were no longer required to come to a unanimous verdict, the jury reached their decision. The jury awarded Mr. Sabean $465,000 in damages, including $185,000 in general damages, $110,000 for future cost of care, $21,000 for loss or future loss of valuable services. From that, Portage was to deduct the $400,000 settlement Mr. Sabean received from the at-fault driver. Mr. Sabean's future CPP payments, which would amount to approximately $90,000, may also be deducted, although the trial judge reserved his decision on that.
Defence counsel are often averse to the proposition of trial by jury, usually out of fear that they will not understand the legal issues or will be swayed by sympathy or empathy for the Plaintiff. However, in Sabean the jury appears to have gotten it right, though Plaintiff's counsel may have a different opinion.