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Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

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Posts Tagged ‘Jones v. Frohlick’

Is Evidence of a Withdrawn Ticket Admissible in a Personal Injury Prosecution?

May 9th, 2018

This week the BC Court of Appeal had the opportunity to decide if it is appropriate for a jury deciding fault for a crash in the context of a personal injury lawsuit can hear evidence that a motorist was issued a ticket by the police which was ultimately withdrawn before trial.

Unfortunately the BC Court of Appeal sidestepped the question finding that if such evidence is inappropriate, any harm caused by it can be cured by a warning to the Jury.

In today’s case (Jones v. Frohlick) the Plaintiff was injured in a collision and sued for damages.  A jury assessed the Plaintiff’s claim at $30,200 but then cut this down to $4,530 on the basis that they found the Plaintiff 85% at fault for the crash.

In the course of the trial the Defendant introduced evidence that the plaintiff was issued a ticket at the scene for failing to yield the right of way to the Defendant.  The ticket was subsequently withdrawn.  The Plaintiff sought a mistrial but this request was rejected.  In finding no mistrial was warranted and a warning to the jury about the significance of a withdrawn ticket was sufficient the BC Court of Appeal provided the following reasons:

[18]       In his ruling, the judge found that the evidence elicited from Mr. Jones on cross-examination regarding the traffic ticket was relevant as it was part of the narrative of the events that occurred at the scene of the Accident, and that any prejudice it may have caused Mr. Jones could be remedied by an instruction to the jury that they could not place any weight on the fact that the ticket was issued or that it was ultimately withdrawn or dismissed. He also noted that counsel for Mr. Jones would be able to cross-examine the attending officer about the ticket and its withdrawal or dismissal, which might even benefit Mr. Jones’ claim.

[19]       In his instructions to the jury, the judge stated:  

I will deal at the outset with the fact that you heard evidence that Mr. Jones was initially given a ticket at the scene of the accident and that the ticket was later dismissed or withdrawn. Neither the fact of the initial ticket nor the fact of the subsequent dismissal is relevant to your determination of liability here. Your obligation is to determine the issue based on the evidence that you heard in court and the legal principles that I will explain to you.

[25]       Mr. Jones raises an interesting issue of whether the traffic ticket was incorrectly characterized by the judge as “narrative” evidence given that the traffic ticket was unnecessary to explain the context or background of the events at the scene of the Accident as they unfolded, was disputed by him, and was subsequently withdrawn or dismissed. In support of these submissions he relies on R. v. Taweel, 2015 NSCA 107. He submits that, in these circumstances, the evidence was irrelevant and should not have been admitted as its prejudicial effect outweighed its probative value, or lack thereof, and it went to the ultimate issue on liability that was for the jury to decide.

[26]       However, even if the admission of that evidence was erroneous, that is not determinative of the appeal. The determinative issue is, assuming but not deciding that the impugned evidence was inadmissible, whether the prejudice caused by its admission could be remedied by an appropriate and adequate limiting instruction to the jury.

[27]       That brings me to the second ground of appeal: whether the admission of the impugned evidence was so prejudicial that even with an appropriate corrective instruction it would have caused a substantial wrong or would have resulted in a miscarriage of justice.

[31]       The impugned evidence in this case was not inflammatory. Nor was it in my view highly prejudicial as it was potentially open to both unfavourable and favourable inferences to Mr. Jones’ claim, the latter including that the ticket was withdrawn because it had no merit or, as was noted by the judge in his ruling, that it was misguided from the start. In these circumstances, I find no error in the judge’s exercise of his discretion in deciding that a corrective instruction was appropriate to alleviate the potential of any prejudice that may have been caused by the admission of the impugned evidence.

[32]       In my view, the instructions were also adequate. The direction to the jury that they should not consider the fact of the traffic ticket or its subsequent withdrawal or dismissal as part of their deliberations on liability, as it was not relevant to their determination, was clear and unambiguous, and therefore forceful. The instruction could not have been misunderstoods by the jury as permitting them to consider the impugned evidence, not only in assessing the evidence as a whole, but also in assessing the credibility of the witnesses and of Mr. Jones’ evidence in particular. As this Court stated in Paskall v. Scheithauer, 2014 BCCA 26 at para. 37:

…once it is determined that a corrective instruction was appropriate and adequate, the matter ends. This Court must assume that juries act judicially and responsibly, that is, the instructions of trial judges are followed “unless there is a clear basis for finding otherwise” (Hovianseian v. Hovianseian, 2005 BCCA 61 at para 25). It is not appropriate for this Court to speculate on whether the jury may have disregarded the judge’s corrective instruction.

[33]       The adequacy of the judge’s instructions is also evident in the final award by the jury. While undoubtedly not embraced by either side, it cannot be said that the award for non-pecuniary damages of $24,000 would not meet the test in Nance v. British Columbia Electric Railway, [1951] 3 D.L.R. 705 (P.C.) in that it was inordinately high or low, or that the total award of damages was “wholly disproportionate or shockingly unreasonable” (Young v. Bella, 2006 SCC 3 at para. 64).

[34]       In the result, I would dismiss the appeal.