ICBC Law

BC Injury Law and ICBC Claims Blog

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

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘Principled Exception to the Hearsay Rule’

Principled Exception to the Hearsay Rule Fails to Save Mystery Witness Statement

April 23rd, 2014

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing the use of the principled exception to the hearsay rule with respect to a statement from an unidentified witness.

In today’s case (Biggs v. Doe) the Plaintiff was involved in a serious collision in 2006.  His motorcycle struck the pup trailer of a dump truck.  This resulted in profound injuries which required an above knee amputation for the Plaintiff.

The Plaintiff alleged that an unidentified motorist struck his motorcycle from behind which forced him to lose control causing the collision.  In support of his claim the Plaintiff attempted to introduce the hearsay evidence of an unknown witness present at the scene who apparently could corroborate the Plaintiff’s version of events.  In finding there is no reliability to the proposed evidence Mr. Justice Bernard provided the following reasons in excluding it:

 [61]         Mr. Biggs seeks to tender the unknown woman’s statements to Mr. Lasser for their truth, pursuant to the well-established “principled exception” to the rule against hearsay. The principled exception permits the admissibility of a hearsay statement for its truth if it is shown, by the party seeking to adduce it, to be both necessary and reliable. In relation to the latter, it is threshold (vs. ultimate) reliability that is the evidentiary standard that must be met for admissibility…

[64]         Having due regard for the foregoing legal principles, for the reasons which follow I am not persuaded that the plaintiff has established that there is threshold reliability to the evidence in question; accordingly, the claimed observations of the unknown witness cannot be admitted into evidence for their truth. In short, the plaintiff has not established either that the statements were made in circumstances in which there is no compelling concern about their reliability, or that sufficient means for assessing their reliability exists.

[65]         In this regard, virtually nothing is known about the woman to whom the statements are attributed other than she was present at the scene of the accident, claimed to have seen it, was upset by it, and chose not speak to the police or even identify herself to them in circumstances which cried out for doing so. Her failure to act responsibly is very troubling. It raises concerns about her motives and, thus, the reliability of any words attributed to her.

[66]          Significantly, this woman cannot be linked to a specific vehicle, and there is no evidence of where she was and, thus, what her perspective was at the time of her observations. In the absence of such evidence, no reasonable inferences can be drawn about her ability to make accurate observations and relate them to others.

[67]         The nature of the event the unknown woman witnessed is an important factor. In the instant case, the event was a dynamic one involving multiple motor vehicles moving at relatively high speeds in relation to one another and at the time of the collision with the pup trailer. Even witnesses who are well-positioned, focused, and have clear and unobstructed views are prone to misperceiving or misconstruing such highly dynamic events. 

[68]         The circumstances in which the statements were made and the absence of any recording of relatively complex assertions at a time reasonably proximate to the utterances, raise significant concerns about Mr. Lasser’s ability to restate them with accuracy. In this regard, it is noteworthy that Mr. Lasser was not an investigator and that his focus was on the task of setting out road flares. The unknown witness was in an agitated state and Mr. Lasser neither questioned anything she said nor sought any clarification. Testifying to the gist of what an eyewitness said is troubling when the statements venture well beyond a simple and clear assertion that can be repeated with confidence as to its accuracy. For example, at trial Mr. Lasser remained uncertain as to whether the unknown woman said the events unfolded ahead of her or from behind, as observed through a rear-view mirror.

[69]         Finally, it is of some significance that the unknown witness described events which are inconsistent with other reliable evidence. For example, it is not a matter of controversy that Mr. Booth’s fifth wheel was in the far right lane at all relevant times. This evidence is difficult to reconcile with the unknown woman’s version of events which apparently has the motorcyclist in the same lane as the fifth wheel when it accelerated into the bumper of the fifth wheel to avoid a car merging from his right side. There is no lane to the right of the merge lane; moreover, the unknown witness does not describe a rear impact to the motorcycle.

[70]         For all the foregoing reasons, I am not persuaded that the evidence in question meets the standard of threshold reliability; indeed, in my assessment it falls very far short of it. In the absence of threshold reliability, admissibility under the “principled exception” to the rule against hearsay must fail and, thus, there is no need to determine whether the “necessity” prong of the two-part test has been satisfied.

 


Admissibility of "Incompetent" Litigant Hearsay Canvassed in BC Injury Claim

April 17th, 2013

Adding to this site’s archived caselaw addressing points of civil procedure, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the admissibility of various out of Court statements made by a Plaintiff involved in injury litigation.

In this week’s case (Saadati v. Moorehead) the Plaintiff was injured in a 2005 collision and sued for damages.  He was also involved in subsequent and previous collisions not before the Court.  Prior to trial the Plaintiff was declared “mentally incompetent” and could not testify.  In the course of the trial both the Plaintiff and the Defendant sought to introduce various pre-trial statements into evidence as exceptions to the hearsay rule.  The decision is worth reviewing in full for the Court’s analysis.  The statements considered included

1. an excited utterance at the scene of the collision

2.  statements to his GP, kinesiologist and treating specialist

3. statements to friends and family

4.  statements to an ICBC adjuster

5. paycheque stubs, pay statements, pay sheets and tax returns

6. Admissions against interest


Is An Expert Report Admissible If Your Expert Dies Before Trial?

March 25th, 2013

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with this issue.  In short the Court held that certain factual observations contained in the report were admissible as they met the ‘necessary and reliable‘ exceptions to the hearsay rule.  The opinion evidence, however, was excluded.

In today’s case (Andrews v. Mainster) the Plaintiff had cognitive limitations and these were tested by a neurupsychologiest one year following the collision.  The expert died before trial.  In admitting the factual portions of the report but excluding the opinion evidence Mr. Justice Pearlman provided the following reasons:

[25]         I return now to Dr. Kay’s report.  Dr. Kay’s report provides the only evidence of a comprehensive neuropsychological evaluation of the plaintiff’s cognitive functioning one year post accident.  The necessity requirement is met with respect to those portions of Dr. Kay’s report that deal with his testing and evaluation of the plaintiff’s level of cognitive functioning.  I also find that those parts of Dr. Kay’s report that record the history he took from Ms. Andrews, discuss the tests he administered and set out his opinions on the results of his testing of the plaintiff’s cognitive functioning meet the threshold of reliability required for their admission into evidence.  Dr. Kay was a neuropsychologist trained and experienced in the use of the standardized tests he administered to the plaintiff.  Those tests provide a largely objective measure of the plaintiff’s cognitive functioning.  These factors, combined with Dr. Kay’s certification of the duties he owed to the court as an expert provide sufficient circumstantial guarantees of the trustworthiness of this evidence to satisfy threshold reliability.

[26]         Different considerations apply respecting Dr. Kay’s opinion or diagnosis of post-traumatic stress disorder, his prognosis, and his opinion on the motor vehicle accident as a cause of the plaintiff’s emotional and psychological disorders.  Those opinions have a significant subjective component.  They are not predicated upon the objective results of his testing of the plaintiff’s cognitive capacity.  The nature, extent and sources of the plaintiff’s psychological difficulties both before and after the motor vehicle accident are all in issue in this litigation.  There is also a live issue about whether the plaintiff fully disclosed relevant information concerning her psychological condition and the various stressors that affected her from time to time to the counsellors, psychologists and psychiatrists who have treated or examined her.

[27]         Defence counsel requested production of Dr. Kay’s file, including his interview notes, in order to determine whether it might shed any additional light on the plaintiff’s complex psychological history.  The file has not been produced and apparently is not available.  Dr. Kay’s report also refers to a diary kept by the plaintiff following the motor vehicle accident, which has not been produced, and to the plaintiff having seen Ms. Tracy Good for counselling for family and relationship issues for 11 years.  Ms. Good informed counsel that she has shredded all of her records.  If true, that effectively precludes exploration of a potentially valuable source of information concerning the causes of the plaintiff’s emotional and psychological disorders before and after the motor vehicle accident. 

[28]         In light of the subjective nature of the evidence concerning the causes and nature of the plaintiff’s emotional and psychological disorders, and the gaps in the documentary record that I have discussed briefly, I am not satisfied that Dr. Kay’s professional training as a psychologist and the certifications contained in his report provide an adequate guarantee of the trustworthiness of his opinions on these matters to meet the threshold of reliability for their admission into evidence.  In the circumstances of this case, there is no adequate substitute for cross-examination of the expert.

[29]         Further, the test of necessity is not met for Dr. Kay’s diagnosis of and prognosis for the plaintiff’s emotional and psychological disorders.  Relevant direct evidence is available from another source.  The plaintiff has a comprehensive opinion from Dr. O’Shaughnessy on the nature and causes of the plaintiff’s disorders, their relationship to the motor vehicle accident and their treatment.

[30]         Accordingly, I conclude that those portions of Dr. Kay’s report beginning at page 20 under the heading “Psychological Explanations” and continuing with the prognosis, opinion and recommendations at pages 21 through 23 do not satisfy the tests of necessity and reliability and are therefore inadmissible.  The balance of Dr. Kay’s report, with those redactions, will be admitted into evidence.


Discovery Evidence and the Principled Exception to the Hearsay Rule

May 4th, 2012

As previously discussed, one of the limits of examination for discovery evidence at trial is that it is generally only admissible against the person being examined.   Rule 12-5(46) permits the Court to make exceptions to this restriction in appropriate circumstances.  Reasons for judgement were released earlier this year by the BC Supreme Court, Vancouver Registry, addressing one such exception.

In the recent case (Yamakami v. Whittey) the Plaintiff was injured in an intersection crash.  Fault was contested.  In the course of the lawsuit the Defendant was examined for discovery.  Prior to trial the Defendant died.

The Defendant’s lawyer wished to rely on his examination transcript at trial in support of the Defence case.  Mr. Justice Fitch allowed this finding it was necessary to do so.  Interestingly, although the Court admitted the evidence finding that an examination for discovery created the necessary safeguards to meet the principled exception to the hearsay rule, the Court ultimately placed little weight on the Defendant’s version of events.  In allowing the evidence to be introduced Mr. Justice Fitch provide the following reasons:

[3] Mr. Whittey, who was 81 years of age when the accident occurred, died before trial but after his examination for discovery was completed on May 11, 2010. Counsel for the defendants applied at the outset of the trial to have his examination for discovery admitted in evidence for the truth of its contents under the principled approach to the hearsay rule. The application was opposed. As Mr. Whittey was deceased at the time of trial, the necessity criterion was met. Counsel for the plaintiff argued that despite the existence of process-based substitutes compensating for the loss of an ability to engage in contemporaneous cross-examination of the defendant (the oath, cross-examination and the existence of a verbatim record of the examination for discovery) the evidence Mr. Whittey gave on the examination for discovery was so inherently unreliable that the test of threshold reliability at the admission stage was not met. In oral reasons for judgment delivered November 4, 2011, I concluded that the process-based compensators present in this case provided a satisfactory basis for evaluating the reliability of the evidence in issue. Accordingly, I exercised my discretion to admit the evidence but made clear that it was for me, at the end of the day, to determine the ultimate or actual reliability of the evidence and the weight it should be accorded.


Hearsay Evidence: BC Injury Trials and Missing/Deceased Witnesses

April 24th, 2010

Hearsay evidence is an out of Court statement introduced at trial for the truth of its contents.  In British Columbia hearsay evidence is admissible in certain circumstances.  BC Courts apply a ‘principled exception‘ to the general rule against hearsay evidence in circumstances where there is sufficient ‘necessity and reliability‘.

What happens if a key witness dies before a personal injury claim in BC heads to trial?  Can previously recorded evidence from that witness be introduced under this ‘principled exception‘?  Reasons for judgement were published this week on the BC Supreme Court website dealing with this issue.

In this week’s case (Simon v. Portsmith) the Plaintiff suffered very serious injuries when he was struck by a vehicle as he was walking along a highway in Salmon Arm, British Columbia.

A key question at trial was weather the owner of the vehicle consented to the driver operating the car.  Another important issue was where the Defendant driver lived at the time of the accident.  The owner of the vehicle could have been ‘vicariously liable‘ for the driver’s actions depending on the answers to these questions.

A witness by the name of Mr. Stushnov was expected to give evidence on where the alleged driver was living at the time of the crash.  Prior to trial Mr. Stushnov swore an affidavit setting out his evidence on this point.  The witness died unexpectedly prior to trial.  The Defendant tried to introduce the affidavit as evidence.  The Plaintiff objected.  Mr. Justice Boyce let the evidence in providing the following useful analysis:

[13] In the case at bar, the plaintiff concedes that the evidence is necessary. Mr. Stushnov is no longer available to testify. The issue is whether the evidence meets the threshold reliability test.

[14] The evidence was taken under oath before a lawyer. Mr. Stushnov was not involved with the events giving rise to this claim in any way. There is no suggestion that he had any personal relationship with Mr. Portsmith other than by providing him a place to live for a period of time. There is no suggestion of any reason that he might have to not tell the truth. He had no interest in the outcome of this proceeding. He was an independent witness.

[15] It is of course true that the plaintiff would now have no way to test Mr. Stushnov’s credibility through cross-examination. However, as counsel for the plaintiff on this motion frankly stated, when the matter was before the court on the Rule 18A application, the credibility of Mr. Stushnov was not in issue and was not raised. What was in issue was the credibility of Mrs. Bostock.

[16] Further, as noted by counsel for the defendant, plaintiff’s counsel has known since 2005 what evidence Mr. Stushnov was expected to give. They chose not to interview the witness to test his credibility.

[17] This evidence is clearly important to the defence. In my view, despite the fact that the plaintiff does not have the ability to cross-examine the deponent, which is something that is often the case when resort has to be made to hearsay evidence, the circumstances surrounding the making of the statement provide sufficient safeguards of reliability to justify its admissibility. The affidavit will therefore be received in evidence.