In Purewal v. Panganiban, 2023 BCSC 1581, an application to strike out a jury trial notice was dismissed on the grounds that the jury, if properly instructed, would be able to understand and characterize indivisible versus divisible injuries. The application was also dismissed on the grounds that the jury would not be in a substantially less favourable position to decide the appropriate deductions for the notional heads of damage included from a previous settlement. As a result, the jury would have to decide the issue of indivisibility of injuries in two different motor vehicle accidents from 15 expert reports if the case went to trial.
The plaintiff was seeking damages for the injuries she sustained in a motor vehicle accident in 2018. However, the plaintiff had previously been involved in an out-of-province motor vehicle accident in 2016 which she had received settlement monies for similar injuries. The defendants requested production of the out-of-province counsel’s file for the accident and it was provided voluntarily. Within the file, the expert reports stated that her injuries were likely to be chronic and therefore, would be indivisible from the 2018 accident.
The plaintiff made an application to have the trial heard without a jury on the basis that the jury could not be expected to understand the concept of indivisibility and that it could not undertake the deduction of heads of damage from the settlement of the 2016 accident from any global amounts assessed presently. The court disagreed with these arguments. The court stated that regardless of the jury’s capability of deciding causation, pre-existing injuries, or damages for injuries involved in both accidents, the trial judge would be in the best position to decide whether they are able to instruct the jury.
In regards to the second argument made by the plaintiff, the court found that the plaintiff had not produced sufficient evidence in their application. The court found that the plaintiff had not tendered the necessary evidence from the 2016 accident to prove that the jury would be in a less favourable position to deal with the appropriate deductions of the settlement.
As a result of this case, a particularly complex area of law, the indivisibility of injuries, may be left to the determination of juries. As well, this case points to the importance of sufficient evidence being advanced in any application. The plaintiff had advanced in the application as evidence of the expert report from the 2016 accident, the out-of-province statement of claim, and the general release from the settlement. The court concluded that it required evidence regarding the claims made and the settlement achieved for the 2016 accident in order to make a determination. Finally, this case demonstrates that even out-of-province settlements for motor vehicle claims have the potential to reduce BC claims.