Majcenic v. Natale

[1968] 1 O.R. 189-205

ONTARIO
[COURT OF APPEAL]
MacKAY, McGILLIVRAY and EVANS, JJ.A.

8th NOVEMBER 1967.

Practice - Jury notice - Application to dispense with jury during trial - Test to be applied by trial Judge in ordering retention or discharge of jury - Judicature Act, s. 58.

Trial - Right to trial by jury - Right of trial Judge to exercise discretion and dispense with jury - Principles on which Court of Appeal will interfere.

Trial - Conduct - Jury trial to assess damages - Trial Judge expressing opinion to counsel in Chambers as to range of damages - Counsel disagreeing with opinion - Trial Judge subsequently dispensing with jury because of complexity of evidence and proceeding with case as non-jury case when satisfied jury having difficulty following evidence - Propriety of trial Judge retaining case.

The trial Judge before the commencement of a trial for the assessment of damages in a personal injury action obtained the medical reports with the consent of counsel and then discussed with them the possibility of proceeding without a jury. Both counsel preferred to retain the jury. At the end of the first day of trial with a jury the trial Judge, in Chambers, indicated to counsel his view as to the proper range of general damages. Again the question of dispensing with the jury arose and counsel were requested to obtain instructions concerning the suggested range of general damages. The following morning counsel for the defendant advised that he was not prepared to agree to the recommendation with respect to general damages and wished to retain the jury; counsel for the plaintiff was requested by the trial Judge to obtain instructions to dispense with the jury. Later that same day, on application of counsel for plaintiff, who had, in fact, served the jury notice, the jury was dispensed with on the ground that the medical evidence was so complex that the jury was incapable of appreciating its nature and the inferences to be drawn from it. The trial Judge then proceeded to assess damages himself. The defendant appealed asking that the judgment below be varied by a reduction in the quantum of general damages or that the judgment be set aside and a new trial with a jury ordered. Held, a new trial with a jury should be ordered.

The right to trial by jury in any action for which the rules provides for the trial of actions by a jury is a substantive right and one not lightly to be impugned. The right of the trial Judge in the exercise of his discretion as to whether or not he should take the case from the jury (the sole test to be applied by him being whether justice to the litigants will be better served by retention or discharge of the jury) is also a substantive right and one with which an appellate Court should not interfere unless it can be demonstrated clearly that the trial Judge proceeded improperly. By expressing his opinion as to the quantum of damages prior to dispensing with the jury, the trial Judge placed himself in such an unfortunate position that he should have declared a mistrial.

Trial - Conduct - Jury trial - Trial Judge engaging in unrecorded discussion with counsel in Chambers on matters relevant to trial - Procedure to follow when conference between trial Judge and counsel being conducted.

A trial Judge who engages in an unrecorded discussion with counsel in Chambers on matters relevant to the trial places himself in an awkward position when the matters discussed later form the basis on which a ground of appeal is argued. The trial Judge should either hear argument in open Court in the absence of the jury or have the reporter in Chambers to record the discussion, or as a minimum precaution the reporter should be called in with counsel present to record the conclusions agreed upon.

Trial - Functions of Judge and counsel - Right of trial Judge to question witnesses - Whether usurping the function of counsel.

On occasion it is not only desirable but necessary that the trial Judge question the witnesses for the purpose of clarification of the evidence. There is a limit, however, to his intervention and when it is of such a nature that it impels the conclusion that he is directing examination or cross-examination in such a manner as to constitute possible injustice to either party, then such intervention becomes interference and is improper. The right to intervene is one of degree and there cannot be a precise line of demarcation, but if it can be fairly said that it amounted to the usurpation of the function of counsel it is not permissible.

[Boran et al. v. Wenger, [1942] O.W.N. 185, [1942] 2 D.L.R. 528; Yuill v. Yuill, [1945] 1 All E.R. 183; Jones v. National Coal Board, [1957] 2 All E.R. 155, apld]

Evidence - Real or demonstrative - Use of anatomical models and charts in jury actions for damages for personal injuries - Judicial attitudes towards use.

Appeal - Application on hearing of appeal to introduce material not forming part of the record - Anatomical model of foot bone and illustrations of leg and foot - Application refused because material not part of record at trial and not of assistance in Court of Appeal's view.

APPEAL by the defendant from a judgment of Haines, J., infra, asking for a reduction in the quantum of damages or a new trial with a jury.

The judgment appealed from was as follows:

B.B. Shapiro, Q.C., for plaintiff.

J.D. Holding, for defendant.

HAINES, J.:- On September 6, 1965, the plaintiff Maria Majcenic was crossing Queen St. in Toronto at a designated pedestrian cross-over when she was struck and seriously injured by the defendant's motor vehicle. Liability is admitted.

Maria Majcenic is now 29 years of age and has been nine years in Toronto. She is the mother of four daughters and resides with her husband in an apartment. Except for a few months surrounding the termination of each pregnancy she has always worked as a nurse's aid contributing a little over $50 per week to their household. Her husband worked at nights so in the day time he was able to look after the children. The plaintiff worked days. The witnesses speak highly of this woman and I was much impressed with her seriousness and honesty. Prior to her accident it was her intention to return to her employment in the following April and thereafter continue her work and help support their family. Their objective was to own eventually their own home and her intention was to work for the next 25 to 30 years. Whether or not she would have worked that long depended on a multitude of factors not the least of which was the accident in question and of course the possibilities of further pregnancies. It is likely that with her four children she and her husband could have carried on their split shifts in the care of the children. More children would have made this unlikely, at least until they had matured to the point where their mother could leave them while she worked. I mention this at the commencement of these reasons because first, I am satisfied that she would have returned to work in the following April and would have worked up until the present time, and secondly, it is my view that the injuries suffered by her have resulted in a permanent impairment of her earning capacity. This earning capacity and resultant loss must be evaluated in the light of the probabilities of employment.

At the outset the injuries sustained require individual analysis, and then later an appreciation of their effect on the whole woman.

First, I will deal with her head injuries. Here she sustained a major injury cracking the back of the skull and through what doctors call contra-coup forces the olfactory nerve which lies under the brain just behind the bridge of the nose was damaged and she has lost permanently the sense of smell. Such severe head injury was also accompained by headaches and dizziness. As might be expected they were severe and painful during the early convalescence. They have continued although somewhat diminished until today and I find on the evidence that the headaches and dizziness will continue for another year at least. Eventually they will go away, leaving her only with her loss of the sense of smell. She also complains of memory defect but I accept the evidence of the doctors that this is the result of the rather continuous emotional upset caused by her head and other injuries, the disturbance of her way of life and the accompanying anxieties. There is no organic basis for it, and eventually it will recover.

We now turn to the other, and in my opinion, more serious injury. What I am about to say could be more readily appreciated if one had before him an anatomical chart of the foot and a model. We are concerned with what is known as the talus bone also called the astragalus. It is difficult to visualize. Separated from the other bones it resembles a Henry Moore sculpture. I will endeavour to describe it together with its uses and then go on to discuss the damage to it. The bone has three bearing or articulating surfaces. It lies immediately underneath the tibia and fibula (the lower leg bones) which fit over the top of it like a saddle to form the ankle-joint proper. Here the talus bone is convex and the joint allows the ankle to move so that the foot can be raised and lowered, called dorsiflexion and plantar flexion. Leaving this joint and moving forward towards the toes there is what is known as the neck of the talus and it terminates abruptly in a somewhat vertical joint with what is called the navicular bone. This joint operates somewhat as a hinge to permit the subject to arch the foot. From the bottom of the navicular joint if one goes toward the back of the foot it will be found that the entiire lower part of the talus forms a third joint with what is called the calcaneum or heel bone. The configuration of this joint is beyond my powers of accurate description without an atlas or model. One must see it to appreciate its convolutions. The important thing to remember is that it is here the heel bone articulates so that in walking the sole of the foot can adapt itself to a variety of slanting surfaces at right angles to the line of movement. It is in constant action as one walks over rough ground.

In the present case we are not concerned with the upper or ankle-joint, but the other two joints are involved. What happened to the patient was that the talus bone was fractured from a point commencing in the neck of the talus (i.e., between the ankle and the navicular joint) and travelling downwards and backwards terminated within the joint where the heel bone joins the talus. In addition the fracture was impacted, that is the two parts were driven together, so that it healed in a deformed position. The result presented two disabilities. The distortion of the talus caused the navicular joint to take up a new or opened position and the fracture in the lower joint constitutes a disturbance of the mechanism of the joint. Translated into the ultimate disabilities it means that the joint becomes painful on use, and that when the examiner takes the foot in one hand holding the heel with the other, pain is produced when the foot is placed in a position of eversion and inversion; that is because of the damage to the lower joint or talus-calcaneum joint. When moved sideways and twisted slightly pain is produced in the navicular joint. This was found by Dr. Joynt in his clinical examination. This condition is permanent. It may get worse. As it is, it prevents her doing the duties required of her as a nurse's aid. It will require her to rest from time to time throughout the day and to find sedentary work if she seeks outside employment. Considering her limited education I am of the opinion job retraining for a sedentary position is most unlikely and that the probabilities are that she will remain at home. Her work as a nurse's aid is no longer possible.

At this point I wish to pause and comment on the medical witnesses. There is no dispute concerning the head injury. Dr. J. Ross Fleming who attened the plaintiff is the chief neuro-surgeon of the Toronto Western Hospital. Dr. William Keith who examined for the defendant was formerly chief of neuro-surgery at the Sick Children's Hospital. But in regard to the foot there is a conflict of medical opinion. Dr. G.H.C. Joynt who attended the plaintiff is chief of orthopaedics at the Toronto Western Hospital. Dr. Keith is not an orthopaedist and in this area I found Dr. Joynt's opinion of more convincing force, and I accept it in preference to that of Dr. Keith. I say this with very great respect because I hold both doctors in very high regard.

Now I must consider these combined injuries on the whole woman and their effect on her life. I have dealt with her condition to date. Her future must be examined in terms of her life expectancy which appears to be 47.9 years, and her working expectancy which would in my opinion be at least 25 years.

It is my view that I must estimate her damages in two aspects. First, her earning disability and secondly, her pain, suffering and loss of amenities.

In my opinion her ability to do outside work and contribute to the support of her family over the next 25 years was a valuable capital asset that she has lost because of her permanent partial disability to her foot coupled with her loss of sense of smell. The only question in my mind is whether she would have worked continuously during that 25 years, and I am of the opinion arrived at after much consideration that the work would not have been continuous throughout this period. I have already mentioned the contingency of further pregnancies, and even if there were no further pregnancies the demands of her family may well have been such as to require periods of temporary cessation of outside work. However, I must confess she is a strong, healthy type who seems to be industrious. She and her husband impressed me as being good immigrant stock determined to attain equal economic status with their fellow Canadians, one of the signs of which would be the ownership of their own home.

Turning to her pain and suffering and loss of amenities, I must take into consideration all those factors from the moment of the accident until now and then give due consideration to necessary allowances for the future. The headaches, dizziness and pain up until now are relatively easy to appreciate. The future in terms of a lifetime I find difficult. The concept of pain and suffering and loss of amenities may become more meaningful when measured in short periods of time rather than over a span of many years. The "worth" of pain over a period of decades is often more difficult to grasp as a concept of reality than is the same experience limited to a day, a week or a month. Here I must consider the permanent loss of sense of smell. Its value as a warning device of danger is obvious. Its value in appreciating the many inviting odours of food, climate and surroundings is a pleasure most of us enjoy daily. It is a serious loss.

Add to this the limitation caused by use of her foot in her daily work, the countless steps a housewife takes each day with an active family, her need for hours of rest each day when she could be doing other things. This woman is going to have a painful foot at any time of the day or night she places more strain on it that it will bear. Four blocks' walking causes it to ache. No one can estimate the distance an active housewife and mother must walk in a day. I accept the evidence that she has now and will have in the two joints previously mentioned a state of traumatic arthritis which Dr. Joynt has demonstrated clinically and that the condition will not get better. Taking all of these matters into consideration and making all allowances for the various contingencies of life it is my opinion that a global amount for general damages should be fixed at $17,000 and I so find. I assess the special damages at $2,935.65.

Before parting with this case I would like to add a word about the mode of trial. As this case proceeded the medical evidence became so complex that I was quite satisfied the jury had only the vaguest impression of the injury to the plaintiff's foot and were probably quite confused. As a result, on application of plaintiff's counsel I dispensed with the jury and continued the trial without their assistance. I did so with reluctance especially since the complexities and confusion could have been removed by the appropriate use of anatomical charts and models and the precise use of medical terms.

At the commencement of the trial counsel provided me with copies of their medical reports which are now exs. 2 to 9 inclusive which I read carefully. As the case proceeded I had before me my altas of anatomy. As the doctors spoke of the various parts of the foot and the effect of the injury on the patient their evidence became more meaningful and took on a definite character that could not be gotten without an atlas of anatomy or model of the relevant bones. On the second day of the trial it became apparent that I was trying one case and the jury another. From the bewildered expressions on the faces of some of the jurymen I was of the definite view they were either confused or had lost interest.

To complicate matters counsel and the doctors from time to time used the terms osteoarthritis and traumatic arthritis as if they were the same thing, and one doctor inadvertently exchanged tendons for ligaments.

It is my considered view that if we are going to try these personal injury cases with a jury of laymen every proper aid to communication must be used to communicate to the jury the exact nature of that part of the anatomy involved, its use and injury. No lecturer to students would think of lecturing in anatomy without adequate anatomical charts and models. It seems to me that in genuine cases where such aids to communication are required they should be used in a modern trial. In response to my question why they had not been made available in the present case, I was informed by counsel that the opinion of Judges varies so greatly on the propriety of the use of anatomical charts and models that it was considered an unjustifiable expense to acquire and attempt to use them. While I appreciate that many Judges react in horror to reports of grinning skeletons, pathological specimens and other paraphernalia said to be used in some Courts south of the border, I am confident that our judiciary is fully capable of excluding evidence when its illustrative value is outweighed by its tendency to prejudice. Speaking for myself only, I find anatomical charts and models most helpful in arriving at a true appreciation of medical-legal situations and where it is necessary for the witness to adequately communicate with the jury I think they should be used. It is with great respect that I note in cases involving mechanical defects of a machine or automobile models and parts are invariably introduced to assist a jury in the better understanding of the evidence. A defective hydraulic wheel cylinder or knee action or spring can be demonstrated easily with the defective part or a model but without them could not be described adequately in words alone. Courts habitually admit these models in cases involving inanimate machines and indeed expect them. It seems to me that in dispute cases of injury to the human anatomy, which is, if I may say so, even more complex than many machines, there is even a greater need for charts and models. Then the matter of terminology is one for which I think the legal profession should accept a substantial portion of responsibility. Arthritis as a term frequently used in our Courts often represents a sort of medical double-talk. There are many types of arthritis, but I will mention only the two involved in this case. They are osteoarthritis and traumatic arthritis.

Osteoarthritis (also known as degenerative arthritis, hypertrophic arthritis or aseptic necrosis arthritis)

Osteoarthritis is a degenerative joint disease. It is associated with age changes and with chronic traumatism, such as "wear and tear". No definite cause for this "disease" has ever been established, other than aging. Actually, it should not be thought of as a "disease". Wear and tear on the joints over along period of time produces the changes which are recognized as degenerative arthritis.

Osteoarthritis is seen more frequently in the weight bearing joints and joints subjected to greatest mechanical stresses, especially the lumbosacral, sacroiliac, hip, shoulder and knee-joints; and especially in those of obese persons. The degenerative changes are manifested by bone lipping (spurs) at the joint rims; calcification (hardening of fibrous tissues); thinning of articular cartilages; narrowing of intervertebral spaces; and, in older females, "osteoperosis" (softening of the bones).

Among the arthritic changes is an over-production of the bone and the wearing away of the cartilage, i.e., of the acetabulum, and of the femoral head. It is difficult to determine whether the changes start in the bone or the cartilage, but it does involve both.

It is found in most persons over 40 but only a small percentage have symptoms. While most of us get some symptoms during later years, many people go through life without symptoms, even though their X-rays indicate advanced osteoarthritis.

Traumatic arthritis in direct joint injury

Before discussing the abnormal joint, it would be well to consider the normal joint. Although there are three types of joints, the type to be considered in the discussion of arthritis is called "diarthroses", which means joints which are freely moveable. There are approximately 187 such joints in the human body. One-half of these are in the spinal column, and one-eighth in each of the four extremities. In a normal joint, the end of the bones participating in the joint (articulating) have a thin shell of compact cortex, and the end is the subchondral plate to which is attached the articular cartilage. This cartilage is of normal universal thickness and appears smooth and glistening. When healthy, it remains this way. At the end of it is attached a membrane called the synovial membrane. This articular cartilage is attached to the bony subchondral plate underneath. Since this cartilage is devoid of any blood supply, it derives its nourishment from thick, clear yellowish fluid normally present and called synovial fluid.

Lining everything within the joint except the articular cartilage, itself, is a membrane called the synovial membrane. In some places, it is thin and flat; in others thick and folded.

Enveloping each joint is an articular capsule. This is made up of fibrous tissue of loose and thick bundles which actually are constant in every joint and frequently recognizable as distinct ligaments. The capsule is attached to the end of the bone and gives that joint much of its stability.

Generally speaking, medical authority will not admit the claim that a single trauma to a joint, even severe, has anything to do with the production of degenerative arthritis, or aggravation of a pre-exisitng arthritis, unless the trauma produces one of the following:

1. Some irregularity of the joint surfaces.


2. A disturbance in the alignment of that joint causing increased stress and strain and wear and tear.


3. Permanent impairment of the circulation of the subchondral bone.


4. A combination of the previous three factors.

The foregoing is not intended to be exhaustive but only illustrative of the care that must be taken when we endeavour to resolve these cases. In a large majority of cases involving adults, there is a pre-exisitng osteoarthritis aggravated by the trauma of the accident. Here we encounter one of the most difficult medical-legal problems, namely, compensation for an injury to a pre-existing disease or degenerated part of the body. It requires the most careful delineation of the pre-existing conditions, their probable course without the trauma, aggravation because of the trauma and when the consequences of the aggravation will disappear if at all. It is essential that not only the Judge and counsel know and use the correct terms, but that the jury clearly understand them and are able to follow them when counsel and witnesses switch from one medical term to another.

The foregoing are some of the reasons why I dismissed the jury.

W.L.N. Somerville, Q.C., and J.D. Holding, for defendant, appellant.

B.B. Shapiro, Q.C., and B.H. Wheatley, for plaintiff, respondent.

The judgment of the Court was delivered by

EVANS, J.A.:-- This is an appeal by the defendant from the judgment of Haines, J., dated February 23, 1967 [supra]. The action proceeded to trial as an assessment of damages and the jury was discharged during the course of the trial on application of the plaintiff. The action arose out of a motor vehicle accident which occurred on September 6, 1965. The plaintiff's general damages were assessed at $17,000 and the special damages at $2,935.65.

The appellant asks that the judgment below be varied by a reduction in the quantum of general damages awarded or alternatively that the judgment be set aside and a new trial with a jury ordered.

The submissions of the appellant for a variation of the judgment with respect to general damages may be briefly summarized:

1. The amount awarded


1. is not supported by the evidence;


2. is based on a misunderstanding of the medical evidence as to the seriousness of the injuries sustained by the plaintiff and the degree of disability attaching thereto;


3. results from the application of a wrong principle of law in that the trial Judge introduced irrelevant factors in his examination of witnesses and considered matters apart from the evidence adduced.

The appellant asks, in the alternative, that the judgment be set aside and a new trial with a jury ordered on the following grounds:

1. Improper discharge of the jury.


2. Excessive intervention by the trial Judge in the conduct of the trial particularly with respect to the examination and cross-examination of witnesses. At the opening of the appeal an application was made by counsel on behalf of the plaintiff (respondent) for leave to introduce:


1. An anatomical model of a bone of the leg and foot.


2. Copies of the relevant illustrations of the leg and foot as shown in Grant's Atlas of Anatomy.

The material sought to be introduced was not part of the record. This application was refused, the Court being of the opinion that such material would not be of assistance.

In view of certain references in the transcript and the submissions made on the appeal, counsel were requested at the conclusion of argument to file a joint statement of facts with conclusion of argument to file a joint statement of facts with respect to certain conversations which took place in the Judge's Chambers and which were not recorded. Subsequently, such statement was filed together with an affidavit by J.D. Holding, counsel at trial for the defendant, referring to certain matters upon which counsel were not in agreement. Before dealing with the material thus made available it is important to enunciate the principles which should govern discussions between a presiding Judge at trial and counsel engaged before him.

The necessity for filing in this Court the materials to which I have referred would have been eliminated if the procedure recommended in Berends et al. v. Taylor, an unreported decision of this Court dated April 5, 1966, had been followed. The procedure recommended therein (in which the propriety of stiking out the jury notice was in question) was that the trial Judge should either hear argument in open Court in the absence of the jury panel or have the reporter in Chambers to record the discussion on the question of whether or not he should dispense with the jury. Many cases in our own Court and in other jurisdictions have indicated that this is the proper course to pursue in such situations and it obviates the unsatisfactory situation which arises when the record is incomplete. A trial Judge who engages in an unrecorded discussion with counsel on matters relevant to the trial places himself in an awkward position when the matters discussed later form the basis on which a ground of appeal is argued. Counsel too are embarrassed when asked to recall the conversation and this embarrassment is increased when counsel do not agree on the purport of the conversation. Moreover, an appellate Court should not be expected to pass upon the recollective abilities of counsel at trial. A statement, even when counsel are in agreement, may be unfair to the trial Judge who has had no opportunity to express his views as to the correctness or completeness of the statement. If the trial Judge finds it necessary to have discussions with counsel in his Chambers, and I appreciate that such situations do arise, the reporter should be present to record the discussion or, as a minimum precaution, should be called in with counsel present to record the conclusions agreed upon.

The jury notice in the present appeal was filed by solicitors for the plaintiff and no objection was taken at any stage of the proceedings by solicitors for the defendant and one can therefore assume that if the plaintiff had not served the jury notice then the defendant might have availed himself of this right. The right to trial by jury in any action for which the rules provide for the trial of actions by a jury is a substantive right and one not lightly to be impugned. The right of the trial Judge in the exercise of his discretion as to whether or not he should take the case from the jury is also a substantial right and one with which an appellate Court should not interfere unless it can be demonstrated clearly that the trial Judge proceeded improperly.

Here the only issue before the Court was the assessment of the plaintiff's damages for personal injuries. While, in my view, the evidence does not disclose that the injuries and the medical evidence referable thereto were of more complexity than found in the usual personal injury cases which are constantly dealt with by a properly instructed jury and while had I been presiding at trial, I might have viewed the matter of dispensing with the jury in a different light than the learned trial Judge did, I would not feel justified in allowing the appeal on the ground of the jury's discharge if the issue were confined solely to a review of the learned trial Judge's discretion in that respect. Other important considerations, however, do intervene.

This Court on many occasions has held that the "vested statutory right" to trial by jury provided by the Judicature Act, R.S.O. 1960, c. 197, is not an absolute right and is subject to the right of the trial Judge to dispense with the assistance of the jury if the circumstances warrant such action. The Court of Appeal will not interfere unless the order is clearly wrong or will result in a denial of justice. The order of the trial Judge to strike out the jury notice must be based on a juridical discretion. The trial Judge's doubts as to the efficiency and efficacy of the jury system are not judicial grounds for dispensing with a jury nor is his personal high regard for the litigant's right to a jury sufficient to reject a motion to discharge when the grounds in support of the motion are substantial. The sole question for determination on this issue is: Will justice to the litigants in the particular case be better served by retention or discharge of the jury? The various factors relevant to the issue must be considered in a judicial manner and the decision must be responsive to the question enunciated.

In the case at bar, the learned trial Judge before the commencement of the trial obtained the medical reports with the consent of counsel and then discussed the possibility of proceeding without a jury. Both counsel, for different reasons, preferred to retain the jury. At the end of the first day of trial, the trial Judge, in Chambers indicated to counsel his view as to the proper range of general damages. Counsel "A" disagreed while counsel "B" was hesitant. Again the trial Judge raised the question of dispensing with the jury and counsel were requested to obtain instructions concerning the suggested range of general damages. The following morning counsel "A" advised that he was not prepared to agree to the recommendation with respect to general damages and wished to retain the jury; counsel "B" was requested by the trial Judge to obtain instructions to dispense with the jury. Some further discussion took place but since counsel are not in agreement as to what transpired I do not propose to deal with it. It is sufficient to state that later that same day on application of counsel "B" the jury was dispensed with on the ground that the medical evidence was so complex that the jury was incapable of appreciating its nature and the inferences to be drawn from it.

I have outlined in some detail the circumstances preceding the motion since I am of the opinion that this background must be considered not only with respect to the motion but to the question as to whether or not the trial was generally unsatisfactory.

The Judge, presumably upon consideration of the medical reports, had already volunteered his estimate of the range within which he considered the general damages should fall. I am unable to perceive the necessity for or the desirability of such unsolicited comment, particularly when the case is to be tried by a jury. I have no doubt that counsel in a non-jury action may be assisted in arriving at a settlement by jointly requesting an expression of opinion as to quantum from the trial Judge. In doing so counsel assume the risk inherent in such procedure. When the opinion is expressed gratuitously counsel is forced to accept a risk which he did not invite and with which he should not be confronted and the risk is particularly onerous when counsel do not agree with the opinion expressed; it becomes oppressive in a jury trial when offers and counter-offers of settlement are made known to the Judge who expresses his own opinion and later withdraws the case from the jury.

Assuming that the learned trial Judge was correct in dispensing with the jury he, by expressing his opinion as to quantum, prior thereto, with which opinion counsel disagreed, had placed himself in such an unfortunate position that he should have declared a mistrial as he was requested to do by counsel for the defendant.

Since I am of the opinion that there must be a new trial, I do not consider it either necessary or proper to direct the manner in which the Judge presiding at the new trial should conduct it. I am aware of the problems which confront trial Judges during the course of a trial. I do not propose to anticipate the evidence to be introduced nor to fetter the discretion of the Judge presiding at the new trial; he will deal with the situation as it then may arise. If the evidence on the sole issue in this case (the quantum of damages) presents such complex problems as to constitute special circumstances requiring the trial to be by a Judge alone, I am satisifed that the Judge presiding at the new trial will exercise his discretion in a manner which will do justice to the litigants.

I turn now to a consideration of the general conduct of the trial. The trial Judge on many occasions took over the examination of the various witnesses and particularly the medical witnesses and in so doing intervened to the extent that he assumed the duty and responsibility of counsel. I can appreciate that on occasion it is not only desirable but necessary that the trial Judge question the witnesses for the purpose of clarification of the evidence and I do not consider that he is solely an umpire or arbitrator in the proceedings. There is a limit however to the intervention and when the intervention is of such a nature that it impels one to conclude that the trial Judge is directing examination or cross-examination in such a manner as to constitute possible injustice to either party, then such intervention becomes interference and is improper.

Questions by the trial Judge amounting to cross-examination during the examination-in-chief of a witness destroys the effectiveness of the later cross-examination by counsel and is quite likely to be prejudicial to the party whose witnesses are being so examined and creates an atmosphere which may well be prejudicial to a fair trial.

In Boran et al. v. Wenger, [1942] O.W.N. 185, [1942] 2 D.L.R. 528, Riddell, J.A., speaking for the Court said:

We think that it is the right of a litigant to have his case submitted to the trial tribunal as his counsel thinks advisable and in the interests of his client -- being governed, of course, by the rules governing trial which are well-established and recognized; the trial judge has no right to take the case into his own hands, and out of the hands of counsel.

We do not for a moment suggest that the trial judge has not the right -- it may often be the duty -- to obtain from the witnesses evidence in addition to that brought out by counsel -- but this is adjectival, to clear up, to add to, what counsel has brought out.

The same principle was set out in Yuill v. Yuill, [1945] 1 All E.R. 183, and in Jones v. National Coal Board, [1957] 2 All E.R. 155.

When a Judge intervenes in the examination or cross-examination of witnesses, to such an extent that he projects himself into the arena, he of necessity, adopts a position which is inimical to the interests of one or other of the litigants. His action, whether conscious or unconscious, no matter how well intentioned or motivated, creates an atmosphere which violates the principle that "justice not only be done, but appear to be done". Intervention amounting to interference in the conduct of a trial destroys the image of judicial impartiality and deprives the Court of jurisdiction. The right to intervene is one of degree and there cannot be a precise line of demarcation but if it can be fairly said that it amounted to the usurpation of the function of counsel it is not permissible.

I have read the record carefully and have been forced to the reluctant conclusion that the learned trial Judge in this case transgressed the permissible line in his questions; they were not only numerous but were of such a character as to amount to unwarranted interference with counsel's conduct of the trial.

For these reasons I would direct a new trial and therefore express no opinion as to the quantum of damages. I consider it sufficient to direct that the damages be assessed by a Judge and jury, subject to the discretion of the Judge presiding at the new trial.

I would allow the appeal with costs, set aside the judgment below and direct a new trial with a jury. I would direct that costs of the first trial be in the discretion of the Judge presiding at the new trial. I have not seen fit to depart from the usual custom of granting costs in this Court to the successful appellant and in this particular case I am reinforced in that view by the fact that counsel for the respondent sought to maintain the judgment below and resisted the submission that this Court should interfere with a trial which I consider to be generally unsatisfactory.

Appeal allowed; new trial with a jury ordered.