Unreasonable Finding by Jury re Negligence: El Dali v. Panjalingam
In El Dali v. Panjalingam, the defendant lost control of his car on an icy road, crossed the centre line, and struck the plaintiff, El Dali’s, stopped car. Following a four-week trial, the jury answered “No” to the following question:
Was there any negligence on the part of the defendant, Pauchanathan Panjalingam, which caused or contributed to the motor vehicle accident on December 11, 2005?
The plaintiff appealed, arguing that the jury’s verdict on liability was unreasonable and unsupported by evidence. The plaintiff pointed out that the defendant Panjalingam had led no evidence about why he lost control of his vehicle.
The Court of Appeal allowed the appeal, set aside the jury’s verdict on liability and ordered a new trial on liability alone. It noted that the defendant had provided no explanation for Panjalingam’s driving or why he had crossed the centre line and struck El Dali’s stopped car. There was no evidence about his speed or any steps he may have taken to avoid the accident. The Court, citing Gauthier & Co. v. The King, noted that poor driving conditions alone did not permit the jury to infer that the accident was unavoidable and not caused by driver’s negligence. Moreover, the fact that the plaintiff was able to maintain control over his own car was some evidence that the road conditions did not point to an unavoidable accident. Finally, and perhaps most importantly for counsel, the Court found that he defence lawyer’s suggestion in closing argument that the defendant be found to be only 50 per cent at fault, while not binding, strongly suggested that the jury’s verdict was unreasonable.
The implication of the Court’s reference to the defence lawyer’s position in closing argument may be that defence lawyers will be more reticent to take softer positions at trial for fear that they will be held to those positions by appellate courts.
 2013 ONCA 24
  S.C.R. 143