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
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.
Portage La Prairie Mutual Insurance Company was represented by
lawyers from our Halifax office.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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