Navigating personal injury cases requires a solid grasp of evolving case law and strategic foresight. In this edition, we analyze key takeaways from recent rulings, including the pivotal Moustakis v. Agbuya, 2023 ONSC 6012?case. These lessons emphasize the importance of expert witness selection, plaintiff credibility, jury instructions, and managing trial risks, offering actionable strategies for legal practitioners.
1. Expert Witnesses: Balancing Advocacy and Objectivity
- A recent case sheds light on the fine line between expert testimony and advocacy, highlighting how a lack of impartiality can undermine the credibility of an expert witness.
- Courts expect expert witnesses to provide unbiased, factual opinions rather than acting as advocates for a party.
- When experts are seen as overly partisan, their testimony risks being discounted or disregarded entirely.
- Vet potential experts thoroughly, focusing on their ability to provide objective and fact-based testimony.
- Provide guidance and preparation to experts to ensure their focus remains on the technical and factual aspects of their analysis, avoiding overly assertive or biased language and that they remain within the bounds of their expertise.
2. Plaintiff Credibility in Invisible Disabilities
- Moustakis v. Agbuya, 2023 ONSC 6012?explored the challenges of proving damages for invisible disabilities such as chronic pain or psychological injuries. The plaintiff’s credibility and adherence to treatment recommendations were crucial to the court's assessment.
- Invisible disabilities often lack clear, objective diagnostic tests, making the plaintiff's testimony and behavior critical evidence.
- Courts carefully scrutinize whether plaintiffs have taken reasonable steps to mitigate their damages, such as following prescribed treatments.
Action Points for Lawyers:
- Encourage clients to follow through with all medical advice and treatments, even if they feel progress is slow.
- Work closely with clients to compile comprehensive medical records and treatment documentation to present a compelling narrative in court.
- Prepare clients to address potential cross-examinations that may challenge their credibility or commitment to recovery.
3. Accident Benefits and Tort Awards: Jury Instructions
- Cases involving the deduction of accident benefits from tort awards often present challenges in deciding how much information should be disclosed to the jury.
- Disclosing too much information about accident benefits can confuse the jury or lead them to adjust their verdict improperly.
- Courts must strike a balance between informing the jury and maintaining the integrity of the deliberative process.
- Don’t let SABS settlement documents and figures be presented to the jury and ensure that any SABS information the jury does see is properly described in the charge so the jury doesn’t apply a hidden deduction. Let the Jury know (if SABS information is in evidence) that the trial judge will make all appropriate deductions from their award to avoid double recovery and if they also make the deductions the plaintiff will be under-compensated.
- Collaborate with opposing counsel or propose draft instructions to ensure clarity and fairness in how the jury processes this information.
4. Adverse Inference and Missing Witnesses
- In some cases, a plaintiff may not call key witnesses—such as a family doctor—whose testimony could clarify aspects of their injury or treatment. Courts may draw an adverse inference from such omissions, interpreting the absence as a sign that the testimony would not have supported the plaintiff’s case.
- Missing witnesses can lead to doubt about the plaintiff’s case, especially when the omitted testimony relates to central issues like the severity or causation of injuries.
- Plaintiffs must proactively address why a key witness has not been called to avoid unfavourable assumptions.
- Early in the case, identify all potential witnesses and evaluate their value to the case.
- If a critical witness cannot be called, prepare alternative evidence or testimony to cover the gaps they leave.
- Be prepared to explain why a presumptively important witness (the family doctor) isn’t important in this particular case (most of the treatment was provided by a psychiatrist).
Recent cases, including Moustakis v. Agbuya, underscore the importance of strategic decision-making in personal injury litigation. Whether it’s ensuring expert witnesses remain unbiased, helping plaintiffs establish credibility, or crafting effective jury instructions, these lessons offer valuable guidance for practitioners. By staying informed and proactive, you can better position your clients for success.
