welcome to the jury decision-making study (4). judge hamilton as a consequence of this incident, the...

Welcome to the jury decision-making study Welcome to the jury decision-making study (4)(4)

Judge Hamilton

As a consequence of this incident, the plaintiff suffered injuries to her throat and vocal cords, resulting in both pain and suffering, and considerable time off from her job as a personal assistant.

The first part of the trial found that the plaintiff was a victim of negligence by the defendant company Southside Painting. Due to Southside Painting’s failure to ensure that adequate safety standards were in place concerning the transport of tools and equipment on their vehicles, the plaintiff was struck by an unsecured ladder.

Ladies and gentlemen, your purpose as members of the jury is to make a decision concerning the extent of damages suffered by the plaintiff, Ms Tate.

Under current law, where injuries sustained by a plaintiff are the result of negligence of a company – as was found with Southside Painting – the victim is entitled to sue for damages. Therefore, what needs to be determined from this hearing, is the amount of damage that was suffered by the plaintiff as a result of this negligence.

Beginning with the plaintiff’s case, you will now hear an opening statement from the plaintiff’s lawyer, Mr Baker, followed by the presentation of the plaintiff’s witness. Mr McLeod, counsel for the defendant, may elect to cross-examine these witnesses.

Mr Baker – prosecuting attorney

The evidence we will present to you clearly demonstrates that as a result of Southside Painting’s negligence, my client has sustained considerable pain and suffering, and loss of income. After presenting our evidence we will ask you to compensate our client for damages, which in our estimation amount to no less than $250,000.

My name is Martin Baker and I will be representing Ms Tate in this matter. In the course of the hearing we will present evidence to you demonstrating the extent of damages suffered by my client. As with any business or trade, companies have a duty of care to ensure standards of safety to protect not only their employees, but members of the public as well.

(The plaintiff, Ms Tate, is sworn in by the bailiff)

Mr Baker – prosecuting attorney

Owing to the nature of Ms. Tate’s injuries, my client is unable to testify verbally. As such, she will type her responses on a computer provided by the court and the court reporter will read her responses out loud. Ms. Tate, please describe the nature of your employment and your subsequent earnings.

Ms Tate – plaintiff (spoken by court reporter)

I am a Personal Assistant for a financial company, where I have been employed for 18 months. Before becoming a personal assistant I worked as a secretary. My annual salary prior to the surgery was $68,000.

Mr Baker – prosecuting attorney

Could you describe the events which you experienced earlier this year on Thursday, the 28th of February?

Ms Tate – plaintiff (spoken by court reporter)

After finishing work around 6:15 pm that day, I left the building and began walking to the bus stop like I did every afternoon. While waiting for the traffic lights to change before crossing Miller Street, I was struck by a large object and collapsed onto the pavement. Upon waking, I realised I was in the hospital. I felt extreme pain in my throat, where I had been hit.

Mr Baker – prosecuting attorney

After waking in hospital did the doctor explain what had happened to you?

Ms Tate – plaintiff (spoken by court reporter)

The doctor explained that bystanders had witnessed the ladder flying off the back of a truck, it struck me in the neck. Thankfully, an ambulance was called almost right away.

Mr Baker – prosecuting attorney

What kind of treatment did you receive in the hospital?

Ms Tait – plaintiff (spoken by court reporter)

At the hospital I experienced extreme pain in my throat and neck, as well as some respiratory difficulties. My initial treatment was mostly supportive and involved securing my airway, fluid resuscitation, investigation of the extend of my injuries, and the administration of pain relieving drugs.

I was released from the hospital two and a half weeks later after tests determined that no other complications were likely. Following this, I was referred to a specialist, Dr James Willis, for ongoing treatment and rehabilitation.

Mr Baker – prosecuting attorney

What kind of impact has this incident had on your life?

Ms Tait – plaintiff (spoken by court reporter)

I have suffered a great deal, my throat is constantly in pain and I am only just beginning to speak again. My specialist has told me that I will not make a full recovery for about 12 to 18 months and until that time my voice will be hoarse and speaking will be painful. As a result, I am unable to work at my job which requires me to speak constantly throughout the day

Mr Baker – prosecuting attorney

I have no further questions.

Judge Hamilton

Any questions for Ms Tate, Mr McLeod?

Mr McLeod – defense attorney

Ms Tate, you state that you have been a Personal Assistant for a considerable

time?

Ms Tate – plaintiff (spoken by court reporter)

Yes, for about 5 years.

Mr. McLeod – defense attorney

Would it therefore not be possible to get employment in a similar business? Perhaps in an administrative area which involves less speaking?

Ms Tate – plaintiff (spoken by court reporter)

Perhaps, but I saw my role in this company leading to better opportunities, possibly in management.

Mr McLeod – defense attorney

No further questions.

(Dr Willis is sworn in by the bailiff)

Mr Baker – prosecuting attorney

Please state your name and occupation.

Dr Willis – expert witness (surgeon)

I am Dr. James Willis. I am a registered Surgeon currently employed at the Toronto General Hospital.

Mr Baker – prosecuting attorney

Dr Willis, would you describe your academic background and training to the jury?

Dr Willis – expert witness (surgeon)

I graduated from McGill University, with first class honours in medicine. I then completed a residency and internship also through McGill University and was awarded a university medal of excellence.

I have been a registered surgeon for ten years during which time I have mainly been involved in public and private Hospitals. I am also regularly invited to present at academic conferences.

Mr McLeod – defense attorney

Your honour, in the interest of expediting the proceedings we are willing to stipulate that Dr Willis qualifies as an expert in the field of medicine.

Mr Baker – prosecuting attorney

Thank you, Mr McLeod. Dr Willis, are you familiar with Ms Tate’s case and the injuries sustained?

Dr Willis – expert witness (surgeon)

Yes, Ms. Tate was referred to me as a patient while she was in the hospital. During my career, I have dealt with a number of similar injuries involving the throat and vocal chords.

Mr Baker – prosecuting attorney

What in your view would be an appropriate method for determining the extent of the injuries sustained by Ms. Tate, and the necessary recovery period?

Dr Willis – expert witness (surgeon)

In my opinion the most accurate way of determining the extent of throat injuries sustained by the patient is by conducting a Video Strobe Voice Evaluation.

Mr Baker – prosecuting attorney

What exactly is this assessment and how is it performed?

Dr Willis – expert witness (surgeon)

The evaluation is basically a test in which video images are taken of the patient’s voice box and then stored by computer. In Ms. Tate’s case, two methods were used to take the pictures of her voice box, looking through the mouth and looking through the nose.

Both methods entail placing a very small malleable tube in the mouth or nose, and down the patient’s throat. The patient is then asked to speak or make a vocal sound, while video images are recorded during this period. Both methods generally take less than five minutes.

Mr Baker – prosecuting attorney

What happens to the video images?

Dr Willis – expert witness (surgeon)

The video is reviewed by a speech therapist with specialised training in the evaluation process, and a report containing the results and recommendations is produced.

Mr Baker – prosecuting attorney

Were the results of Ms. Tate’s assessment reviewed by yourself, and if so, what were your conclusions?

Dr Willis – expert witness (surgeon)

They were. I concluded that Ms. Tate had suffered severe tissue injury associated with the impact of the ladder. The extent of the injuries indicated to me that Ms. Tate would need at least 14 or more months of recuperation before being able to resume normal, pain free speech.

Mr Baker – prosecuting attorney

So Dr. Willis, is it your expert opinion that Ms. Tate will be unable to speak normally for at least 14 months.

Dr Willis – expert witness (surgeon)

That is correct. Prolonged speaking during that period will cause the patient pain and she will have a much hoarser than normal voice. For full recovery I recommend that she keeps speaking to a minimum for at least 14 months.

Mr Baker – prosecuting attorney

Thank you, Dr Willis. I have no further questions and we rest our case.

Mr McLeod – defence attorneyMr McLeod – defense attorney

I have no questions for Dr Willis.

(Cross examination by defence counsel, Mr Peter McLeod)

Mr McLeod – defence attorneyMr McLeod – defense attorney

My name is Peter McLeod and as you are aware I am representing the defendant, Southside Painting. In response to the testimony you have just heard from the plaintiff’s expert, we will present alternative evidence which proves the damages incurred by Ms. Tate were much less than what has been suggested. At the end of this presentation, I will recommend that you award a reasonable amount of damages to Ms. Tate of no greater than $40,000.

 (Dr Charles Taylor is sworn in by the bailiff).

Mr McLeod – defence attorneyMr McLeod – defense attorney

Please state your occupation for the jury, Dr Taylor.

Dr Taylor – expert witness (ENT specialist)

I am employed as an Ear, Nose and Throat specialist for a private practice in Toronto. I also receive referrals from Mount Sinai hospital.

Mr McLeod – defence attorneyMr McLeod – defense attorney

Please describe your education and experience.

Dr Taylor – expert witness (ENT specialist)Dr Taylor – expert witness (ENT specialist)

I received my PhD at the University of Toronto. I have been employed as a registered Ear, Nose and Throat specialist in the private sector since 1990.

Mr McLeod – defence attorneyMr McLeod – defense attorney

Dr Taylor, are you familiar with the injuries suffered by the plaintiff, Ms Tate?

Dr Taylor – expert witness (ENT specialist)Dr Taylor – expert witness (ENT specialist)

Yes, I am.

Mr McLeod – defence attorney

Could you tell us how you familiarised yourself with these injuries?

Dr Taylor – expert witness (ENT specialist)Dr Taylor – expert witness (ENT specialist)

I have specialised training in throat injuries. I also reviewed the Video Strobe Voice Evaluation images taken by Dr James Willis. In addition, I have examined Ms Tate’s throat.

Mr McLeod – defence attorneyMr McLeod – defense attorney

After reviewing Ms Tate’s injuries what conclusions did you draw in regards to the extent, and the subsequent required period of recovery?

Dr Taylor – expert witness (ENT specialist)Dr Taylor – expert witness (ENT specialist)

After examining Ms. Tate and her Video Strobe Voice Evaluation images, I have concluded that she sustained moderate damage to her throat and vocal chords. I agree with Dr Willis’ analysis in as much as prolonged speaking at present would cause the patient discomfort. However, I believe that with the proper treatment and care Ms. Tate would make a full voice recovery within four months.

Mr McLeod – defence attorneyMr McLeod – defense attorney

Dr Taylor, is it then your expert opinion that Miss Tate will be able to speak normally throughout her working day as her job requires, within a four month period?

Dr Taylor – expert witness (ENT specialist)Dr Taylor – expert witness (ENT specialist)

Yes. I am convinced that with adequate treatment and support, Ms. Tate will be capable of returning to her

current job within about four months.

Mr McLeod – defence attorneyMr McLeod – defense attorney

I have no further questions for this witness, your honour.

Judge Hamilton

Members of the jury, each side will now present their closing argument. I will then instruct you as to the legal rules you are required to apply in making your decision.

Mr Baker – prosecuting attorney

In addition to this, we feel a further $180,000 is a commensurate amount for her loss of future income and for

the pain and suffering she has endured. Therefore, I ask that you ensure

companies such as Southside Painting are held responsible for their duty to

maintain standards of safety, by awarding my client damages in the amount of no less than$250,000.

Ladies and gentlemen, the facts of this case and are simple. Southside Painting violated the law, a fact upon which a jury has already found them guilty. Their failure to ensure necessary standards of safety in terms of the transportation of equipment has resulted in severe physical injuries to my client.

Dr James Willis, a highly respected and qualified Surgeon , has testified as to the necessary recuperation time needed by my client to resume working at her occupation as a personal assistant. Dr Willis also stated that Ms. Tate will be unable to work for at least 14 months, a loss to her in financial terms of $70,000 in salary.

Mr McLeod – defence attorneyMr McLeod – defense attorney

I also think this a relatively simple case. It has already been confirmed that the defendant was negligent. While we do not believe this was the case, we will not argue any further. What we do dispute, however, is the amount of compensation that the plaintiff is asking for.

Although the plaintiff has indeed suffered temporary injuries to her throat, the severity of these injuries do not warrant 14 months of recovery. You heard testimony from Dr Taylor, an Ear, Nose, and Throat specialist, whose job necessitates expert knowledge in throat injuries. After examining the plaintiff, Dr Taylor concluded that four months was an appropriate time frame for full recovery.

I ask therefore, that you refuse to give Ms. Tate a windfall, and instead consider what is truly a fair amount. We subsequently ask that you award no more than $40,000 to the plaintiff.

Consequently, if Ms. Tate returned to work in four months time her loss of earnings would equal $20,500. Considering again, this time for recovery, we feel that an additional $19,500 is ample as compensation for any pain and suffering incurred.

Judge Hamilton

The law does not require that the plaintiff make exact proof, in dollars and cents, but the law does require that the amount of damages be proved by facts that pass the realm of conjecture, speculation or opinions not founded on facts. Bearing these rules in mind, I ask that you consider the evidence and reach your verdict.

You must now determine the amount of money that will reasonably and fairly compensate for the damage caused by the defendant’s negligence. The plaintiff and defence have presented different estimates as to the amount of compensation warranted.

These are estimates only – it is up to you, as members of the jury, to decide the exact amount of damages, if any, suffered by Ms. Tate as result of Southside’s inadequate safety standards.

The End

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