Five Things a Jury Member Must Know for a Car Accident Trial
Contrary to what you may have seen on your favourite legal drama series on TV, in a civil lawsuit in Ontario, including personal injury suits, lawyers and their clients will know very little about the jurors who decide their case. They will know the juror’s name, occupation and will see what they look like in court when the juror’s name is called. Lawyers don’t get to question selected jurors, and only get to challenge up to 4 jurors, after which, whoever is left will be the ones to decide the case. Unfortunately, as a member of the Jury, there are often applicable laws that you will not be told, that can significantly affect whether the injured person will receive the “fair and just” verdict intended by the panel of jurors deciding the case.
1. THE INSURANCE COMPANY IS CALLING THE SHOTS:
The Defendant (at fault) driver involved in the accident is almost always defended by an insurance company and its lawyers. The word “insurance” will probably not be mentioned during the trial, but an insurance company is the one that is calling all the shots. They select the lawyer, they chose and pay for the defence medical experts, and they run the defence trial strategy. At the end of the case, it is the insurance company who pays if the Plaintiff is awarded any compensation by the Jury.
2. THE THRESHOLD:
At the end of a motor vehicle accident trial when jurors go to a private room to discuss the case and make decisions, the injured person (with his or her lawyer) must convince the Judge that they have suffered a “permanent serious impairment of important physical, medical, or psychological functions”. This test is called the threshold. If the judge decides that the threshold is not met, any money that you and the jury panel award for pain and suffering are taken away, although the jury may never be told this.
3. THE DEDUCTIBLE:
Another law that juries are not told about is something called the deductible. Even if the judge agrees that the injured person has a serious permanent injury, Ontario law requires that any money for pain and suffering automatically be reduced. The deductible applies to any award made for pain and suffering that falls below $123,016.99. Why such an odd number? It used to be $100,000 but these figures have since been adjusted for inflation. For many years, this deductible was $30,000, however, adjusted for inflation, the Ontario government recently raised this to over $36,905.40. If you and your fellow jurors decide that fair compensation for the injured person’s pain and suffering is less than this amount, the injured person gets nothing. If the jury awards more than this, say $40,000, the injured person gets roughly $3,000 ($40,000 – the $36,905.40 deductible), again the jury panel is not told about the deductible, as they are not supposed to take it into consideration when assessing an award for pain and suffering, even though the deductible has a significant impact on the injured victim.
4. INCOME SUPPLEMENTS ARE CLAWED BACK:
Because cases usually take a very long time to reach trial, usually the injured person is left to rely on other sources of income, such as disability benefits through work, Canada Pension disability, income replacement benefits from their own car insurer, or social assistance. Depending on the type of income supplement received, the insurer defending the negligent driver either gets to deduct these amounts from whatever you award for past or future lost income, or the injured victim has to return any money received from the government for social assistance. You as a member of the jury are usually never told about the fact that these benefits, one way or another, are clawed back from any potential award for income loss.
5. COMBINED THESE RULES CAN MEAN THE VICTIM PAYS FOR THE TRIAL:
The effects of these laws regarding “thresholds”, “deductibles”, and the “claw back for other benefits”, and the fact that jurors are never told about them, can mean that any award that you and your fellow jurors decide is fair compensation, ultimately gets wiped out – which is an effective loss of the trial for the injured victim. It means the victim is now liable to pay huge legal costs to the defending insurer, even when the jury has awarded some money to the innocent accident victim.
It’s probably not surprising that the risks of a trial are high for victims. Collectively the application of these laws make it clear that in a lawsuit the deck is stacked against anyone innocently injured in a motor vehicle accident. Given that any one of us can potentially be a motor vehicle accident victim at any time, or any one of you could be selected to sit on a jury, it is important that everyone is aware of these laws and how they affect us all.