Exclusion of Witnesses Results in New Trial in Chronic Pain Case

Written by admin on . Posted in BCSC Civil Rule 1, BCSC Civil Rule 7, Civil Procedure, ICBC Privacy Issues.

This week the BC Court of Appeal released reasons for judgement ordering a new trial following a chronic pain case which resulted in a $525,000 damage assessment.
In this week’s case (Houston v. Kine) the Plaintiff was injured in a 2006 collision.  She allegedly suffered from PTSD and a chronic pain disorder as a result of the crash.  The matter went to trial although did not conclude in the time initially allotted.
There was a 5 month gap before the trial recommenced.  During this break ICBC undertook surveillance of the Plaintiff over two periods of time.  The Defence lawyers, however, failed to disclose this evidence in compliance with the Rules of Court.  As a result the trial judge refused to let the evidence in.  The Court went further, however, and held that the witnesses who made the videos could not testify as to their observations of the Plaintiff as doing so would undermine the decision to exclude the video evidence.
The Defendants appealed arguing that the witnesses were wrongly excluded.  The BC Court of Appeal agreed and found that while “the defendants’ choice at trial to withhold the existence of the videotapes….was inappropriate” and that this evidence was rightly excluded it was improper to exclude the witnesses themselves to testify.  In ordering a new trial the BC Court of Appeal provided the following reasons:






[31] The obvious difficulty with the viva voce evidence was that the observers were unknown to the defendants prior to the hiatus in the trial. The earliest that they could have been identified was in November of 2009. By then, the plaintiff’s preparation for trial was all but over. To constrain the defendants’ ability to react to the plaintiff’s evidence to “prevent surprise or ambush” in my view unfairly restricted their ability to have the proceeding determined on its merits. As the trial judge accepted that there was no restriction on calling lay witnesses, she erred in imposing that restriction respecting witnesses who could comment on the plaintiff’s activities during the hiatus in the trial.

[32] The trial judge’s second reason for refusing to allow the observation witnesses to testify was that:

It would be inconsistent with my previous order and with the objects of the Rules, expressed in R. 1(5), “to secure the just, speedy and inexpensive determination of every proceeding on its merits,” to allow the defendants to, in effect, ambush the plaintiff with this evidence, which has been disclosed only recently.

[33] In my view the trial judge here misapplied Rule 1(5), focussing on speed in the completion of the proceedings at the expense of their merits. The Rule and the third factor in Stoneemphasize the importance of the determination of a proceeding on its merits. In order to determine a proceeding on its merits, the admissible evidence that is tendered by a party and is relevant to matters in issue should be considered.

[34] In addition, given that the original trial estimate was exceeded by the plaintiff’s case, necessitating the adjournment of the trial that caused the hiatus that brought about the acquisition of new evidence by the defendants, I am unable to accept that the delay resulting from the proposed evidence should have been treated any differently from the delay that was occasioned by the initial inadequate trial time estimate. The failure to do so prevented the determination of these proceedings on their merits. I conclude that the trial judge erred in law in refusing to permit the witnesses to give viva voce evidence at the trial…







[36] Here, the credibility of the plaintiff was a critical factor in the trial judge’s assessment of quantum, and the evidence of the observers was intended to directly address the plaintiff’s credibility. In my view, the refusal of the trial judge to permit the defendants to adduce evidence to challenge the plaintiff’s physical abilities at the date of the trial was unfair, and given the importance of this evidence to the ultimate award of damages for future diminished earning capacity and future cost of care, I see no alternative but to order a new trial on damages. I would thus allow the appeal and order a new trial.

bc injury law, credibility, Houston v. Kine, List of Documents, privileged documents, Rule 7, Rule 7-1, Rule 7-1(1), Rule 7-1(6), Rule 7-1(7)

Comments (46)

  • click here to investigate

    I simply want to mention I am just new to weblog and seriously liked this page. Very likely I’m going to bookmark your blog . You absolutely come with terrific articles. Kudos for sharing your blog.

  • W88 Thailand

    I have been browsing online more than three hours today, yet I never found any interesting article like yours. It’s pretty worth enough for me. Personally, if all website owners and bloggers made good content as you did, the net will be much more useful than ever before.

  • http://exeportal.ru/user/gvjyzaqwcyv/

    hey there and thanks to your information – I have certainly picked up anything new from right here. I did alternatively expertise some technical issues using this web site, since I skilled to reload the website many times previous to I could get it to load correctly. I have been thinking about in case your web host is OK? Now not that I’m complaining, but slow loading instances times will often have an effect on your placement in google and can damage your high quality ranking if advertising and ***********|advertising|advertising|advertising and *********** with Adwords. Well I am including this RSS to my email and can glance out for a lot extra of your respective fascinating content. Make sure you update this once more very soon..

  • marcel van hooijdonk

    You actually make it seem so easy with your presentation but I find this topic to be really something that I think I would never understand. It seems too complicated and very broad for me. I am looking forward for your next post, I’ll try to get the hang of it!

  • Insektenbekämpfung

    Hmm is anyone else encountering problems with the images on this blog loading? I’m trying to determine if its a problem on my end or if it’s the blog. Any suggestions would be greatly appreciated.

  • Underground Elephant San Diego

    Thanks for the sensible critique. Me and my neighbor were just preparing to do some research on this. We got a grab a book from our local library but I think I learned more clear from this post. I am very glad to see such magnificent information being shared freely out there.

  • situs poker online

    Hiya! Quick question that’s entirely off topic. Do you know how to make your site mobile friendly? My weblog looks weird when browsing from my iphone4. I’m trying to find a theme or plugin that might be able to correct this issue. If you have any recommendations, please share. Thanks!

  • situs poker online

    Pretty component of content. I just stumbled upon your blog and in accession capital to claim that I acquire in fact enjoyed account your blog posts. Any way I’ll be subscribing for your feeds or even I achievement you get admission to persistently fast.

  • 릴 게임

    Hi, i read your blog occasionally and i own a similar one and i was just curious if you get a lot of spam responses? If so how do you prevent it, any plugin or anything you can recommend? I get so much lately it’s driving me crazy so any support is very much appreciated.

  • online poker

    I think this is one of the most important information for me. And i am glad reading your article. But wanna remark on some general things, The web site style is wonderful, the articles is really nice : D. Good job, cheers

  • agen poker online

    This is really interesting, You are a very skilled blogger. I’ve joined your rss feed and look forward to seeking more of your fantastic post. Also, I have shared your site in my social networks!

  • lån

    Someone necessarily assist to make severely posts I’d state. That is the first time I frequented your web page and thus far? I amazed with the analysis you made to make this particular submit extraordinary. Wonderful activity!

  • 야마토

    I got what you intend, thankyou for putting up.Woh I am thankful to find this website through google. “The test and use of a man’s education is that he finds pleasure in the exercise of his mind.” by Carl Barzun.

  • Bearking magallon

    Hello there, I found your site by means of Google while searching for a similar subject, your website got here up, it seems great. I have bookmarked it in my google bookmarks.

  • מקרן קול

    great issues altogether, you just received a new reader. What would you suggest in regards to your publish that you just made a few days in the past? Any sure?

  • รับจัดงานแต่งงาน

    My wife and i felt really lucky that Edward managed to conclude his preliminary research while using the ideas he made through the web site. It is now and again perplexing just to possibly be releasing tips and tricks that many other folks have been selling. We recognize we have got the website owner to appreciate for this. The explanations you have made, the simple blog menu, the friendships you make it easier to foster – it is many overwhelming, and it’s really assisting our son in addition to the family consider that that issue is pleasurable, which is exceedingly fundamental. Thanks for all the pieces!

  • w88

    Great web site. Lots of useful info here. I’m sending it to some friends ans also sharing in delicious. And certainly, thanks for your effort!

  • 야마토게임

    I realized more a new challenge on this weight reduction issue. Just one issue is a good nutrition is extremely vital when dieting. An enormous reduction in fast foods, sugary food items, fried foods, sweet foods, pork, and white-colored flour products could possibly be necessary. Having wastes parasitic organisms, and poisons may prevent objectives for shedding fat. While a number of drugs temporarily solve the issue, the bad side effects will not be worth it, and in addition they never present more than a short-term solution. It is a known proven fact that 95 of fad diet plans fail. Many thanks for sharing your ideas on this web site.

  • 먹튀 검증

    Excellent post. I was checking constantly this blog and I am inspired! Extremely helpful info particularly the ultimate section 🙂 I care for such info much. I used to be looking for this particular information for a very long time. Thank you and best of luck.

  • 토토사이트

    fantastic post, very informative. I wonder why the other experts of this sector don’t notice this. You must continue your writing. I’m confident, you have a huge readers’ base already!

  • how to watch game of thrones free

    Thanks so much for providing individuals with an extremely nice possiblity to read in detail from this web site. It really is very superb and as well , full of a good time for me personally and my office mates to visit your site at a minimum 3 times in a week to find out the latest issues you have. And indeed, I am usually fulfilled for the spectacular advice you give. Certain 4 tips in this article are unquestionably the most beneficial we have all had.

  • 우리카지노

    I was just seeking this info for some time. After 6 hours of continuous Googleing, finally I got it in your website. I wonder what is the lack of Google strategy that don’t rank this type of informative web sites in top of the list. Usually the top sites are full of garbage.

  • 먹튀폴리스 가족방

    Nice post. I used to be checking constantly this weblog and I am impressed! Very helpful info specifically the remaining section 🙂 I deal with such information a lot. I was seeking this certain info for a very long time. Thank you and best of luck.

  • Niemcy Opieka Praca

    Hello, you used to write wonderful, but the last several posts have been kinda boring… I miss your tremendous writings. Past few posts are just a little out of track! come on!

  • 먹튀검증 업체

    Magnificent goods from you, man. I have understand your stuff previous to and you’re just too great. I actually like what you’ve acquired here, really like what you’re saying and the way in which you say it. You make it entertaining and you still take care of to keep it smart. I cant wait to read far more from you. This is really a wonderful site.

  • 먹튀폴리스 보상

    Have you ever considered about adding a little bit more than just your articles? I mean, what you say is important and everything. However think of if you added some great images or video clips to give your posts more, “pop”! Your content is excellent but with images and clips, this site could definitely be one of the best in its niche. Great blog!

  • nonton movie

    An impressive share, I simply given this onto a colleague who was doing just a little analysis on this. And he actually bought me breakfast as a result of I discovered it for him.. smile. So let me reword that: Thnx for the treat! However yeah Thnkx for spending the time to discuss this, I really feel strongly about it and love reading extra on this topic. If attainable, as you turn into expertise, would you mind updating your weblog with extra details? It is highly helpful for me. Massive thumb up for this blog put up!

  • pembesar alat vital alami

    What i do not understood is actually how you’re not actually much more well-liked than you might be right now. You’re so intelligent. You realize therefore significantly relating to this subject, produced me personally consider it from so many varied angles. Its like women and men aren’t fascinated unless it’s one thing to do with Lady gaga! Your own stuffs great. Always maintain it up!

  • 토토사이트

    Furthermore, i believe that mesothelioma is a exceptional form of most cancers that is typically found in these previously familiar with asbestos. Cancerous cells form inside the mesothelium, which is a defensive lining that covers the vast majority of body’s body organs. These cells generally form inside the lining of your lungs, belly, or the sac which encircles one’s heart. Thanks for discussing your ideas.

Comments are closed.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

    Disclaimer