Divisional Court Says No to Bifurcation of MVA Jury Trial

 It is not uncommon these days to see parties, usually defendants, ask for a “bifurcated trial”. In most cases, this means that liability would be tried first and then damages would be assessed at a later date, in a second trial. The expectation (or hope) is that the liability trial will be relatively short and inexpensive and that once that issue has been determined, the damages can be settled. This would avoid a trial of damages, which generally takes much more time to complete.

The Divisional Court has refused the defendants’ request for a bifurcated trial in Carreiro v. Flynn. This was an MVA case arising out of a young child running into the street from between some parked cars. She was catastrophically injured. The liability trial was estimated to take three or four days but a trial on damages would occupy at least three weeks. Accordingly, the defendants moved for an order that the trial be bifurcated, with liability to be tried first.

A complicating factor in this case is that both sides had served jury notices. So, if the court had ordered bifurcation, different juries would decide liability and damages. Not surprisingly, the plaintiffs wanted the same jury to hear both aspects of the case.

The Divisional Court upheld the judge at first instance, who had refused the request to bifurcate. The Court felt that it was not appropriate to split this case (rejecting as “purely speculative” the suggestion of defence counsel, that the whole case would “likely settle” after the liability trial). But it went further and endorsed caselaw which had held that bifurcation is never available where a jury notice has been served. The Divisional Court left the door open a crack, saying that there might be cases, even jury cases, where bifurcation is appropriate, but that this was not one of them.

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