During the early stage of a medical negligence jury trial, the defendants brought an oral motion to strike the jury notice and discharge the jury.
The motion arose after the plaintiffs proposed that evidence relating to liability be heard by the jury, while evidence relating to a limitation defence and the doctrine of special circumstances be heard only by the judge.
The court considered whether such compartmentalization of evidence would make the trial unworkable or compromise fairness.
Emphasizing the importance of the substantive right to a jury trial and the substantial onus required to strike a jury notice, the court declined to discharge the jury at that stage.
The judge adopted a “wait and see” approach, permitting the jury to be excluded for witnesses whose evidence related solely to the limitations issue while reserving the decision regarding witnesses whose evidence might overlap both issues.
