APTLA's Past President writes in defence of the Civil Jury

May 11, 2005
In response to a commentary published in The Lawyers Weekly (April 29, 2005) by Harris Hanson titled "Should Juries Determine Damages in Civil Trials?" - Ches Crosbie speaks out on the side of civil juries and justice.

Letter to the Editors of The Lawyers Weekly
Re: Commentary: Should Juries Determine Damages in Civil Trials
By Harris Hanson, appearing in Vol. 24, No. 48 - April 29, 2005

In your April 23 edition Harris Hanson?s Commentary asks: ?Should Juries Determine Damages in Civil Trials?? He argues that supporters of civil jury trial are looking for something other than justice according to law, and answers his question: No.

The model of excellence in personal injury damages assessment Mr. Hanson adopts is based on professional legal monopoly: an award of general damages is conventional and based on knowledge of awards in comparable cases. It is therefore better administered by experienced judges who know what the conventional awards are, than by untrained lay people who do not.

The core flaw in this reasoning is the assumption that assessment of damages is an issue of law. The various Negligence Acts and high judicial authority (see B.(M.) v. B.C., 2003 SCC 53, para. 54; Dilello v.Montgomery, 2005 BCCA 56, para. 39) declare otherwise damages are an issue of fact. The real question is not whether juries are good finders of law, but whether juries are good finders of fact, perhaps even better finders of fact than judges.

Judges live an isolated life, and the hazard of constant reference to conventional awards is that the process is circular and in danger of getting out of touch with social and financial reality. The value of assessment by a jury of one?s peers is that of access to a consensus or cross-section of community opinion (something even Lord Denning esteemed in Ward v. Janes, at least in theory). Without the jolt provided by lay opinion in Pilot v. Whiten, 2002 SCR 15, judges presiding in insurer bad faith cases would still be administering punitive damages in the $15,000 range. Without the dissatisfaction with judge-made arbitrary limits on non-pecuniary generals, manifest in numerous jury verdicts in serious personal injury cases (reviewed in Dilello above), the trilogy limits doctrine would not be headed for review by the SCC ? something I predict will occur within the next 5 years.

Judges state the law, but they do not have a monopoly on insight into justice. It is for this reason that the various Trial Lawyers Associations have pledged to defend and promote the civil jury, and for this reason every loss of the civil jury is a loss to justice.

Chesley F. Crosbie, Q.C.
Past President
Atlantic Provinces Trial Lawyers Association