The Court of Appeal has confirmed that juries can hear cases involving waivers.
In Kempf v. Nguyen, 2015 ONCA 114 (C.A.), the plaintiff suffered injuries when the defendant's back wheel clipped his front wheel during a charity bike ride. The defendant pled volenti and that the plaintiff was contributory negligence, and relied on a waiver signed by the plaintiff.
The trial judge granted the plaintiff's motion to strike the jury notice on the basis that the jury would be confused by the contents of the waiver or misuse it in their deliberations. She was concerned that the plea of volenti involved a claim for declaratory relief, which is precluded from being determined by a jury. She also rejected the defendant's suggestion to take a "wait and see" approach. She struck the jury and found in favour of the plaintiff.
The Court of Appeal allowed the defendant's appeal, holding that it was a reversible error to discharge the jury on the basis that it would be too difficult to explain the law. Volenti is not a claim for declaratory relief; it is a full defence to a finding of negligence. Justice Epstein held that "To determine liability, the jury would have to sift through the often conflicting evidence, and make findings of fact and apply the law as explained to them by the trial judge. This is what juries do every day" (para. 59).
Kempf is helpful in confirming that the right to a jury is an important one, and that juries are capable of hearing a wide variety of cases, including those involving contracts or waivers.
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Court of Appeal Upholds $1.1 Million Jury Award
The Court of Appeal has upheld a $1.1 million damages award in a product liability case heard by a jury.
In Stilwell v. World Kitchen, 2014 ONCA 770 (C.A.), the plaintiff injured his hand when a glass pot broke while he was cleaning it. The jury found the defendant 75% at fault and the plaintiff 25%. Particulars of negligence included not identifying when the customer should contact the manufacturer and the warning on the box being inadequate. The jury assessed damages at $1,132,850 including $25,000 in aggravated damages.
The Court of Appeal upheld the award except for the aggravated damages. It held that the standard of review of a jury verdict is "exceptionally high" and a jury's verdict should only be set aside where it is so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have arrived at the verdict. Additionally, a jury's verdict is entitled to a fair and liberal interpretation in light of the evidence and the circumstances. In the circumstances, there was an evidentiary basis for the jury's conclusion.
The aggravated damages award was set aside as the judge failed to advise the jury that, in order to award such damages, they had to be satisfied that any increased injury to the plaintiff had to be a result of particularly reprehensible conduct by the defendant.
This case is a good example of the high threshold a party faces in attempting to overturn a jury verdict.
In Stilwell v. World Kitchen, 2014 ONCA 770 (C.A.), the plaintiff injured his hand when a glass pot broke while he was cleaning it. The jury found the defendant 75% at fault and the plaintiff 25%. Particulars of negligence included not identifying when the customer should contact the manufacturer and the warning on the box being inadequate. The jury assessed damages at $1,132,850 including $25,000 in aggravated damages.
The Court of Appeal upheld the award except for the aggravated damages. It held that the standard of review of a jury verdict is "exceptionally high" and a jury's verdict should only be set aside where it is so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have arrived at the verdict. Additionally, a jury's verdict is entitled to a fair and liberal interpretation in light of the evidence and the circumstances. In the circumstances, there was an evidentiary basis for the jury's conclusion.
The aggravated damages award was set aside as the judge failed to advise the jury that, in order to award such damages, they had to be satisfied that any increased injury to the plaintiff had to be a result of particularly reprehensible conduct by the defendant.
This case is a good example of the high threshold a party faces in attempting to overturn a jury verdict.
Label:
General Damages Non-Pecuniary,
Jury
The Importance of Objecting to an Improper Jury Charge
Vokes Estate v. Palmer, 2012 ONCA 510 (C.A.)
This appeal decision illustrates the importance of objecting to a judge's charge to the jury, as well as the difficulty in overturning jury verdicts on appeal.
The case involved a fatal motor vehicle accident. The defendant appealed the jury`s verdict, arguing that the trial judge failed to properly charge the jury with respect to s. 139(1) of the Highway Traffic Act (concerning the duty owed by the deceased on entering a highway) and failed to instruct the jury on the proper range of damages for loss of care, guidance and companionship. The defendant also argued the jury award was gross and excessive.
The trial judge advised that he intended to charge the jury by omitting the words underlined below.
That section therefore imposes a very positive duty on Michelle Vokes in this case, breach of which would clearly constitute negligence. On the other hand, this positive duty on Ms. Vokes does not relieve Mr. Palmer who was operating his motor vehicle on the [through] highway from exercising ordinary care in the circumstances.
Counsel for the defendant did not object to the charge and in fact described the charge as an
The remainder of the appeal was also dismissed, as under s. 118 of the Courts of Justice Act the judge may give a range of damages, but is not obligated to do so. In addition, the threshold for overturning a jury`s award of damages is very high. The assessment must be so inordinately high as to constitute a wholly erroneous assessment of the loss of care, guidance and companionship, which was not the case.
This appeal decision illustrates the importance of objecting to a judge's charge to the jury, as well as the difficulty in overturning jury verdicts on appeal.
The case involved a fatal motor vehicle accident. The defendant appealed the jury`s verdict, arguing that the trial judge failed to properly charge the jury with respect to s. 139(1) of the Highway Traffic Act (concerning the duty owed by the deceased on entering a highway) and failed to instruct the jury on the proper range of damages for loss of care, guidance and companionship. The defendant also argued the jury award was gross and excessive.
The trial judge advised that he intended to charge the jury by omitting the words underlined below.
That section therefore imposes a very positive duty on Michelle Vokes in this case, breach of which would clearly constitute negligence. On the other hand, this positive duty on Ms. Vokes does not relieve Mr. Palmer who was operating his motor vehicle on the [through] highway from exercising ordinary care in the circumstances.
Counsel for the defendant did not object to the charge and in fact described the charge as an
“exercise in perfection”. The Court of Appeal held that while the failure to object is not fatal, in most cases, an alleged misdirection or non-direction will not result in a new trial unless a substantial wrong or miscarriage of justice has occurred.
The remainder of the appeal was also dismissed, as under s. 118 of the Courts of Justice Act the judge may give a range of damages, but is not obligated to do so. In addition, the threshold for overturning a jury`s award of damages is very high. The assessment must be so inordinately high as to constitute a wholly erroneous assessment of the loss of care, guidance and companionship, which was not the case.
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