Scrap juries in ICBC cases, critics say

 ICBC’s improper disclosure of the personal accident histories of jurors to a Victoria lawyer hired by the auto insurance corporation has raised questions about whether civil juries should continue to decide motor-vehicle claims in this province.

Last week, B.C. Supreme Court Justice Malcolm Macaulay forwarded transcripts of court proceedings about the unauthorized disclosure to B.C.’s Deputy Attorney General Allan Seckel. At the time, Macaulay suggested changes to court rules involving civil juries may be necessary.

Macaulay is concerned about the fairness of civil jury trials involving ICBC. He noted the auto insurance corporation usually insists on having jury trials because it believes a jury award will be less than an award given by a judge.

The justice is also concerned that the financial risk to the plaintiff in losing a jury trial or receiving only a nominal award because a juror is afraid his or her insurance premiums will rise "is sufficiently serious to create, in some cases, a barrier to justice."

"It may well be overdue for the bar to consider whether some further changes to the rules are needed to ensure continuing fairness to all parties," said Macaulay.

Victoria personal-injury lawyer Natalie Foley was counsel for the plaintiff in the recent civil trial where the unauthorized disclosure of jurors’ claims history came to light. Her client, Krista Norsworthy, who was seeking compensation from ICBC as a victim of two separate car accidents, didn’t want her case decided by a jury, but had no choice because defence counsel requested a jury trial.

On the first morning of the trial, Foley made an application to strike the jury because she felt the medical evidence was far too complex for jury members to understand. Her request was denied.

Foley also said that because virtually all B.C. residents have some relationship or history with ICBC, jurors are unable to make objective decisions. ICBC funds and controls the defence in motor-vehicle claims and funds awards, something everybody knows.

"There used to be a concern that if insurance was even mentioned in the courtroom, then jurors would think, oh well, there’s an insurance company behind it with deep pockets and they would give particularly high awards," said Foley.

"Now it’s the opposite. Jurors think if they give particularly high awards, it will affect their insurance premiums."

Foley believes the answer is allowing plaintiffs to choose whether they want to have a jury of their peers. "That’s the obvious solution and I think there will be more discussion about that," she said.

Jury trials pose a greater risk to plaintiffs than to ICBC, said Victoria lawyer Deborah Acheson, since they tend to run longer than trials with judge alone, and plaintiffs who lose are on the hook for court costs.

"A trial that can be done in 10 days by judge alone will take 15 to 20 days with a jury," said Acheson. "ICBC can afford the lottery of winning and losing."

Acheson also argues that juries are not given enough information when it comes to the amounts they are allowed to award an injured party. Juries are not allowed to see similar cases decided by other judges, and they’re not told there is a $310,000 cap on the award for pain and suffering, she said.

In civil trials, juries are asked to allocate damages for pain and suffering, past loss of capacity to earn income, future loss of capacity to earn income and past and future care needs.

"In some cases, the jury looks at the pain and suffering and says, ‘Oh my God, that’s awful. I want to award $1 million for that.’ Then they get to the next [item], thinking they’ve already awarded $1 million, and they give smaller amounts.

"What happens is, the minute the jury leaves the room, the judge looks at the verdict and says, ‘I’m striking $1 million for pain and suffering. This is a moderate soft-tissue injury with depression and psychological harm — $60,000.’ The jury never even knows this has happened," said Acheson.

Although the judge is required by the court to correct problems when juries make a mistake, when a jury fails to give a fair award, the judge can do nothing, said Acheson.

"From my perspective, it’s simply not manageable to have juries hearing ICBC motor-vehicle claims."

ldickson@tc.canwest.com

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