Big Win for Ontario Insurer: Bifurcation of Personal Injury Trial Ordered

Splitting a trial – between liability and damages – is a tactic which favours the defendant insurers. If you have a serious injury, can the defendant force you to go to Trial twice? Can the defendant de-risk the file in the face of a significant damages claim?

A new case that should cause plaintiff personal injury lawyers to shudder: Woodbury v. Woodbury, 2013 ONSC 7736 (CanLII)

If you have a serious injury, can the defendant force you to go to Trial twice?

• Can the defendant force you to go first to a short Trial on liability – i.e. who is responsible for causing this accident?

How about when you have a very serious

As a litigator, this type of scenario arises often. Plaintiff counsel take on very tough liability situations (i.e. the defendant may be found completely ‘innocent’ or free of fault) because the corresponding damages claim is very large.

In this case, the damages claim for an apparently profoundly injured boy was a demand of $20 million, but the liability situation against the defendant was a tough one.

The plaintiff boy was water skiing, attached to his Dad’s boat (with his Dad driving), when his Dad made a last moment emergency move to swerve and avoid hitting another boat (which was moving very slowly). Unfortunately, the unlucky plaintiff/boy was swung by the movement of his boat to slam into the other boat.

The defendant’s boat was barely moving at the time of the accident. Its defence was that it was available to be seen – if the plaintiff’s Dad had been keeping a diligent watch – and that the plaintiff’s Dad alone created this situation of danger.

Normally, this type of case holds the threat of big damages over the head of the defendant’s insurer, so that before Trial, the defendant insurer has to be very careful as to whether settling informally (and paying a portion of the claim) is better than risking a Trial decision.

In Woodbury, however, the surprising development is that Master R.A. Muir allowed the bifurcation motion brought by the defendant.

Effectively, if this decision stands, the plaintiff’s position against the defendant boat is severely weakened. The liability situation against that boat is weak / risky.

Traditionally, bifurcation has been viewed as being a difficult motion to win if it was not by consent.

This is an important and surprising decision for all lawyers practicing in the personal injury field. We’ll wait for the appeal decision.

Expect a raft of bifurcation motions by defence insurers as a result.

PS – for a further background, you can review our January 15/2010 blog on bifurcation.

Gregory Chang

Toronto Personal Injury and Insurance Lawyer