The trial judge found that these answers demonstrated that the jury ignored the charge on causation and failed to explain howthe negligence caused the plaintiff’s brain injury. The law is clear that putting a person at risk of a bad outcome is not sufficient to establish causation; nor is increasing a risk of a poor outcome without specifying how that manifested itself; causation must be proven on a balance of probabilities through expert evidence. By failing to identify a specific link between the negligence, the risk and the injury, the jury failed to provide an answer that could found the basis of a judgment. The trial judge held that:
78 The jury’s answer to question 2B demonstrates their reasoning was flawed; they concluded that being at “higher risk” caused brain damage, which is clearly erroneous. Even on a generous reading, this answer fails to set out the causal link between the breach (the failure to move up the delivery date) and the outcome (the brain damage). It fails to explain how, which is the essence of causation.
79 The jury’s answer to the question on the particulars of causation for Dr. Ma was similarly flawed. It mirrors the answer to the question on particulars of the breach of the standard of care… Simply being an IUGR baby cannot be causative of brain damage; and neither can a baby’s medical history nor the NST results. The answers fail to identify the mechanism of injury or to put it differently, to say how the actions of Dr. Samra and Dr. Ma in failing to deliver the baby earlier resulted in Rhonda suffering brain damage at the time of her birth.
80 The answers of the jury on causation do not explain the causal link between the negligence and the brain damage; they make no reference to the vast amount of expert evidence on such matters as the normal imaging following Rhonda›s birth, the normal cord gases at birth, the state of the placenta or the onset and effect of the seizures that commenced in July 2006. Furthermore, the evidence of the Plaintiffs› experts was that the brain damage occurred in the 30 minutes prior to birth. Thus, the jury›s answer on causation, that the baby should have been delivered on either April 18 or April 21, 2006, fails to explain how the breaches of the standard of care they identified resulted in or caused Rhonda›s brain damage.
On this basis, the jury’s verdict was rejected and a new trial ordered. The decision was appealed and upheld. In reviewing the trial judge’s decision, the court considered the purpose of judicial reasons: “Judicial reasons are sufficient if they satisfy their identified purposes, which are:
- To justify and explain the result and satisfy the public that justice has been done;
- To explain to the losing party why he or she lost;
- To provide for an informed consideration of any grounds of appeal; and,
- To permit effective appellate review.”
The court held that jurors need not justify their results nor explain to the losing party why he or she lost but certainly their reasons must support the integrity of their verdicts. The answers to the questions are supposed to demonstrate that the jury understood and addressed the key issues. The court outlined that jurors’ reasons will be insufficient if they:
- Are not responsive to the question(s) asked;
- Manifest confusion, disagreement or ambiguity or demonstrate that the jury did not understand and properly apply the instructions given to them; or
- Indicate that the jury missed an essential issue.
In this case it was held that the judge correctly determined that the answers were essentially non-responsive to the causation question and, to the extent the responses were specific indicated a misunderstanding of the correlation between risk and “but for” causation. The answers then raised concern about the jurors’ understanding of the legal issues and judge’s instructions. As the jury seemed to confuse the issues of standard of care and causation, the jury verdict was appropriately rejected.
