Hard Cases, Good Law, Juries and Sympathy

Sympathy is not evidence upon which a jury may find in favour of a litigant.

After a two-week trial in a medical malpractice claim, the jury found cause-in-fact [factual causation] was established on the balance of probability. However, the trial judge ruled that there was no evidence whatsoever to support the finding. The judge dismissed the action.

Salter v. Hirst, 2010 ONSC 3440 (Ontario Superior Court) is a reminder to lawyers and litigants of the expensive consequences of not having the necessary evidence and of not asking the necessary questions, even if one has a tragic injury, a sympathetic plaintiff, and a jury.

In the Canadian system, a jury isn’t required to give reasons for its findings of fact. The usual approach is not to ask the jury detailed questions. It is likely that this approach favours the plaintiff more often than not. Salter is one case where it did not.

In most cases, Canadian tort law requires a finding of factual causation on the balance of probability. There is now a limited category of case in which Canadian common law doctrine holds that a finding of fact that there is a possibility of factual causation is sufficient for that aspect of the causation requirement. The plaintiffs’ lawyers agreed that Salter was not one of those cases. Therefore, the plaintiffs had to establish factual causation on the balance of probability. They could not. The action failed.

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