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NEGLIGENCE IN ACTION

Ottawa Law School | March 5, 2018

DAVID F. MACDONALD, Partner*David MacDonald Law Professional Corporation

1-888-223-0448 | 647-290-7291 celldmacdonald@thomsonrogers.com

Presented by:

Preparing and Trying Negligence Cases

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Initial Interview

• See your case through the lens: Whatquestions will the judge/jury be asked toanswer

• Liability information

• Sources

• Investigation

• Damages / forseeable?

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Duty of Care

• Car

• Fall

• Medical

• Products

• Employers

• Municipalities: example case child fell downeroded bank

• Premises

• Bars – example case Steinhoff, Brass Rail

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Standard of Care

• Drivers to passengers

• Charges

• Right of way

• Repair of roadway – sign, ice example casesGreer, Ferguson

• Medical – relevant to area of specialization– Nature of hospital

– Nature of relationship• Consider insurer doctors

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Breach of Standard Information

• Inspection

• Inattention

• Breach of statute or regulation

• Occupiers Liability

• Highway Traffic

• Training principles

• Policies or conventions

• Right of way, split in Liability example: Siddiqui

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Causation

• Concerning liability

• Concerning damages

• But/for…example case road rage

• Multiple sources of cause, plaintiff’s duty

– Gun shot

– Hiring contractor

• Example case re tavern: Steinhoff

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Forseeability, Remoteness

• Robust approach

• Ex: medical negligence in treatment of caraccident victim injuries is deemed forseeableand not remote as caused by negligent cardefendant

• Knew or ought to have known

• Reasonableness standard, common practice

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Knew or Ought to Have Known

• Factual observations

• Statements

• Common practice

• Previous instances

• Training

• Policy

• Laws/duties imposing standard

• The hindsight problem/bias

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Developing the Case

• Further investigation

• Police

• Records

• Investigator

• Witnesses

• Photos

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Developing the Case

• Engineer

• Human factors

• Medical opinions on

– Standard

– Breach

– Causation

– remoteness

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Anticipating Defence Positions

• Medical malpractice

– Would condition have developed anyway

– Was risk explained

– Informed consent

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Other Important Dynamics

• Car cases

– Pre-existing injuries and causation

– Vehicle condition

– Additional parties contributing

• Premises

• Contributory negligence,

• Joint and several liability

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Contributory Negligence

• Passenger – safety equipment

– Warning

– As to driver’s state – impairment

– Driver as to child seat

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Negligence of Family Members

• Parents as drivers

• Coaches

• Supervision

• Crossing street, dropping children off:example case Hoang

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Developing Liability

• Statement of claim allegations

• Productions affidavits of documents

• Discoveries and admissions

• Previous statements

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Developing the Theory

• The victim who tries hard

• The careless defendant

– Previous charges

– Apologies

– Charges outcome and effect in civil litigation

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Pretrial

• Summary of case

– Key facts

– Anticipate and address defence positions

– Simple language

– Quoting highwater marks on liability and damages

• Admissions

• Police findings

• Defence doctor acknowledgments on damages

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Demonstrative evidence

• Photos

• X-rays

• Videos

• Reconstructions – example case Greer

• Overhead drawings

• Piece of malfunctioned part

• Price tag of cost of repair

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Delivering the Message

• The medium…

• Digital trial

• Recordings

• News captures

• Important apps

– Good reader

– Notemaps

– notability

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Witness Preparation

• For discovery

• For pretrial

• For trial

– the injured plaintiff

• Memory issues, example Greer Case

• Example case Trzebinski – no memory

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Witness Preparation

• Family and friend

– Brain injury, under- reporting

• The treatment provider

– Establishing greater credibility through frequencyof visits

• Opinion evidence and the meaning of expert

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Witness Preparation

• The police witness

– Summarizing.

• Example case Hoang

• Liability case: The engineer

– Qualification

• Municipal standard of care, signage, construction

• Accident reconstructions

• Human factors, reaction time

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Expert Witness

• Who is an expert

• Negative judicial treatment

• Assumptions

• Hypothetical questions

• Preparing for cross and reexam.

• Example case: Ferguson: engineer hrycay resign, speed, reaction

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The Trial

• Decorum

• Picking jury, four challenges

• Recording

• Exhibits sharing

• Sharing order of witnesses

• Summonsing witnesses

– Example case Siddiqui, when I was summonsed

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The Jury Trial

• Judge’s opening

– Who

– Nature

– Need for impartiality

– No googling

– Taking notes

– Ipad use

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The Trial

• The opening– The theme, the story, the persons we will hear

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• Exhibits, when and if– The injuries

– Contentious issues or evidence

– The law

• Motions re admissibility of evidence– Voir dire

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Examining Your Witnesses

• The leading question

• Hearsay

• Qualifying certainty

• Referring to evidence not before the court

• Opinions on speed, impairment, lighting…

• Consistency

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Cross Examination

• Lay witnesses

– Credibility

– Convictions

– Factual foundations

– Distraction factors

– Example: police seminar accident example

– Admissions, bias,

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Expert Witnesses

• Liability– qualification

– Reports

– Defence reports

– Dealing with evidence outside of reports

– Information from others relied upon: hearsay

– Authoritative texts, standards: example case Greenstop sign

– Establishing foundational facts

– Variation in opinions

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Demonstrative Evidence

• Principles of admission– Must be: relevant, accurate and fair,

– Probative effect outweighs prejudicial effect

– Voir dire used to deal with admissibility.

– Browne v. Dunne• If to be used to challenge credibility, must put to

witness first. Example case involving surveillance andfailure to disclose

• To visually aid in conveying the opinion of theexpert or lay evidence

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Demonstrative Exhibits

• Help the jury to see it your way

• Examples– Business records

– Photos

– Mechanical parts

– Anatomical models

– Re-enactments

– Day in life videos Example case – amputee puttingleg on

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Demonstrative Evidence

• Tables

• Graphs

• Maps – example case Russell school besiderailway

• Intersection reconstruction with magnets torepresent vehicles and movements.

– Example case Hoang – shows defendant could seechild well before he struck him.

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Demonstrative EvidenceRe Proof of Damages

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Demonstrative Evidence

• Google maps

– Example case Ferguson: re failure to adequatelyinspect roadways and deploy equipment duringstorm

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Counsel’s Closing Address

• Order

• Persuasive value

• Summary

• Reference to law of negligence and evidenceproving same

• Reference to questions to be answered

• Suggesting answers to the questions

• Use of exhibits and demonstrative evidence

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Counsel’s Closing Address

• Use of admissions and helpful informationfrom defence witnesses– Example case Hoang, chart of agreed needs

• Questions to jury:– Was the defendant x negligent

– If so, what are the particulars of the negligence

– Example case Hoang: unload children in unsafeunloading area

• Counsel can suggest amounts for damages

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Judge’s Charge to Jury

• Fairly summarize all the evidence

• The law applicable to the evidence

• Counsel’s duty to object to the charge

– Can’t sit back if Judge got facts, accurate summaryof evidence, or law wrong in a material way.

– Counsel should also suggest the remedy, areworded approach

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Jury Deliberations

• Have all the exhibits

• May have questions

– Example case: jury contact with witnesses

• Decision must be unanimous

• If hung jury Negligence Act apportionsnegligence 50-50

– Example case Kovachis:

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Resources

• Ontario Courtroom Procedure

• Oatley-McLeish Guide to DemonstrativeEvidence

• The Law of Evidence in Canada

• Rules of Civil Practice

• Basic Courtroom Etiquette

Please feel free to call or email with questions.

THANK YOU

DAVID MACDONALD1-888-223-0448 | 647-290-7291

dmacdonald@thomsonrogers.com