Adding to this site’s database of BC non-pecuniary damage decisions, reasons for judgement were released today by the BC Supreme Court, Victoria Registry, assessing damages for a lingering injuries from a motor vehicle collision.
In today’s case (Land v. Di Maddalena) the Plaintiff was involved in a collision when he was 8 years old. He was 17 by the time of trial. Fault was admitted by the offending motorist. The Plaintiff suffered a variety of injuries including soft tissue injuries, knee pain, headaches and anxiety. While he made a good recovery and was able to actively participate in physical sports some symptoms were expected to linger into the future. In assessing non-pecuniary damages at $70,000 Mr. Justice MacKenzie provided the following reasons: [116] A fair assessment of damages is difficult in the present case because of the passage of time since the accident, the changes in symptomology over many years, the fact that Spencer is currently 17 years old and not yet fully grown or mature, the possible relationship between his present physical condition and his participation in strenuous sports such as basketball, tennis, soccer, lacrosse and football, especially when Spencer told me he “likes physical contact.” The fact that the medical evidence in this case is very dated has also complicated this analysis. In these circumstances, it is no surprise the evidence and medical opinions as to Spencer’s future physical condition are somewhat equivocal. The extent to which Spencer’s present deficits will affect him in the future is difficult to predict. [117] With the above factors in mind, and having regard to the totality of the circumstances, I am satisfied that because of the accident, Spencer suffered modest soft tissue injuries, initial knee pain, headaches and anxiety. These have affected his lifestyle to a certain degree, but have now significantly resolved. Fortunately, they have had a relatively modest impact on his activities over the last two years. In my view, a fair and reasonable award for non-pecuniary damages is $70,000.
When an injury claim proceeds to trial the case becomes one of public record. The public nature of the proceedings can lead to unintended consequences such as creating a papertrail for Revenue Canada to go after undeclared past earnings.
Another unintended consequence of the open trial process was highlighted in reasons for judgement released this month by the BC Supreme Court, New Westminster Registry. In the recent case the Plaintiff was injured in a 2007 collision. He missed some time from work initially but returned to work in 2008 and had “been performing the work duties assigned to him” since that time. The Plaintiff sought damages for diminished earning capacity and in support of this claim tendered medical evidence speaking to his physical limitations. When his employer learned of this the Plaintiff was suspended (in this case temporarily) from his employment. The reasons for judgement highlight this consequence as follows: [122] The evidence at trial was clear that the plaintiff has been performing the work duties assigned to him since his return to work in 2008. However, on the first business day following completion of the trial, the plaintiff was suspended from his duties, without pay, apparently because the City of New Westminster had concerns about the plaintiff’s fitness for duty as a firefighter on the basis of its understanding of the evidence the plaintiff led at trial. By letter dated June 24, 2013, Chief Armstrong informed the plaintiff as follows: At the trial and in speaking to legal counsel for yourself and ICBC I learned several things that caused me concern. First, apparently considerable medical evidence has been tendered at the trial as evidence of your inability to perform the full range of duties required by your position. Second, you are apparently seeking the recovery of considerable damages as a result of the accident and prior to being subpoenaed, we were not aware that these proceedings had been instituted by you. …This is to advise that you are being held out of service without pay until you are able to prove to us that you are in fact fit for duty. We are formally requesting you provide copies of all medical evidence tendered as exhibits at your trial so that we may assess your fitness for duty as expeditiously as possible.
In an illustration that not all trial ‘losses’ trigger catastrophic costs consequences, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, ordering balanced costs consequences.
In this week’s case (Desharnais v. Parkhurst) the Plaintiff was involved in two vehicle collisions. Prior to trial the Defendants provided two formal offers, the first at $50,000 the second at $75,000. The Plaintiff, who was seeking in excess of $1 million rejected both offers and proeeded to trial. Following a thirteen day jury trial the Plaintiff’s damages were ultimately assessed at $30,100.
Both parties had medical evidence to justify their respective positions, however, the Court noted, some of the opinions of the Plaintiff’s experts were “highly suspect”.
The Defendants sought substantial costs having bested their formal settlement offers. The Court noted a more appropriate result would be to award the Plaintiff costs up to the date of the second formal offer and to have the parties bear their own costs thereafter. While such an order still has significant financial consequences for the Plaintiff it is far less sever than ordering payment of the Defendant’s costs. In reaching this decision Mr.Justice Saunders provided the following reasons: [42] On the whole, I do not consider either the First or the Second Offer as having reflected, objectively speaking, a genuine attempt at compromise. I find them to hae been more reflective of what the Applicants could reasonably have hoped to achieve if all or substantially all of the issues were resolved in their favour. I am not dissuaded from taking this view by the fact that the jury awarded even a lesser amount; I do not think it is unfair to counsel or to the jury for me to say that the jury’s decision was considerably less than what reasonably prudent counsel would have regarded as a “win” for the defence. I cannot find that either offer ought reasonably to have been accepted by the plaintiff. [43] As Goepel J. stated in Ward, that is the beginning, not the end of the analysis. The most basic principle underpinning the Rules relating to costs is that costs of a proceeding are to be awarded to the successful party (R. 14-1(9)). This expectation is intended to promote sensible conduct throughout court proceeding; it exists notwithstanding the broad judicial discretion to depart from the principle, which is generously built into the Rules. [44] In this case, the jury found that the plaintiff had successfully proven some damage. But for the offers to settle, he would be entitled to his costs. Having regard to the factors set out in Rule 9-1(6), including giving some weight to the plaintiff’s financial circumstances, I do not find that the offers were so substantial that the Applicants ought to be entitled to any indemnification against their own costs. The plaintiff’s position was not completely lacking in merit. It was not frivolous. However, the fact that the settlement offers exceeded the judgment amount cannot be ignored. The Applicants were forced to incur the expense of a trial which they were willing to avoid by paying the plaintiff a not insubstantial sum, a sum which ended up being considerably greater than the damages the plaintiff was judged to be entitled to. It would be unfair to require the Applicants to indemnify the plaintiff for the costs of advancing a claim that was ultimately judged to be greatly overvalued. [45] I find that the plaintiff is entitled to his costs up to the date of delivery of the Second Offer. The parties will bear their own costs thereafter.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the scope of document disclosure when dealing with supplementary reports. In short the Court held the same duties apply to supplemental reports as to ‘original’ reports, namely to identify the documents relied on by the expert in forming their opinion.
In this week’s case (Amini v. Khania) the Defendant’s expert authored a supplemental report without listing all the documents relied on. The Defendant argued the Rules for listing all documents relied on in expert reports do not apply to supplemental reports. Mr. Justice Burnyeat disagreed and in doing so provided the following reasons: [18] The submission of counsel for the Defendants is that it is not necessary in a supplementary report to include a list of every document relied upon by the expert providing a supplementary opinion. I am satisfied that the failure of Dr. Dommisse to list the documents that he relied upon is not “cured” by the provisions of Rule 11-6(7). While it is clear that supplementary reports have a narrow scope and purpose and are only intended to set out where and how a previous opinion has changed in a material way, there is nothing in Rule 11‑6(7) which would allow me to conclude that the filing of a supplementary report can circumvent the clear and mandatory requirements of Rule 11‑6(1)… [21] The very purpose of Rule 11‑6 is that all expert reports should be tendered in a way that neither side can be ambushed or surprised at trial… [23] A supplementary expert report remains an expert report. It must comply with the rules set out in Rule 11‑6(1). Otherwise, the supplementary opinion would be based on unknown facts and assumptions. It would be impossible to give the necessary weight to a supplementary expert opinion as it would be impossible to compare the facts upon which that opinion was based with the findings of fact ultimately made by the Court. The provision of a supplementary report which does not comply with Rule 11‑6(1) should not be used to circumvent the requirement that no party will be caught by surprise by an expert report.
Important reasons for judgment were released today by the BC Court of Appeal confirming, in divided reasons, that it is contrary to public policy to allow a vehicle owner/operator to contract out of liability for damages for personal injuries.
In today’s case (Niedermeyer v. Charlton) the Plaintiff embarked on a tour to Whistler BC to participate in various activities including a zip lining experience. Transportation to and from Whistler was provided the by the Defendant. During the return trip the bus driver “allowed the bus to get too close to the edge of the road and…the bus went off the road and over the edge“. The Plaintiff suffered severe injuries including a fractured neck, ribs and vertebra.
Prior to the trip the Plaintiff signed a waiver agreement which covered activities such as ziplining but also included a clause covering “travel to and from the tour areas”. The Defendant was, like most BC motorists, insured with ICBC and the Plaintiff sued for damages. The Defendant admitted he was negligent but the waiver was upheld at trial dismissing the plaintiff’s claim. In overturning this decision the majority of BC’s Court of Appeal provided the following reasons: [114] In my view, the ICBC regime is intended as a benefit for the public interest just as is human rights legislation. It would be contrary to public policy and to a harmonious contextual interpretation of the legislation to allow private parties to contract out of this regime. As such, to the extent that the Release purports to release liability for motor vehicle accidents it is contrary to public policy and is unenforceable. The judge erred in finding that the public policy interest exemplified in a compulsory universal insurance scheme was incapable of defeating society’s interest in freedom of contract.
Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, addressing the liability of a motorist who darts into traffic causing a cyclist to lose control.
In this week’s case (Graham v. Carson) the Defendant motorist was stopped at a commercial loading zone and the “darted out into traffic too quickly” when it was unsafe to do so. The Plaintiff, who was travelling in the same direction, lost control trying to avoid a collision with the Defendant and subsequently drove his bicycle into a parked car causing injury to himself. The Defendant argued the Plaintiff was the author of his own misfortune. Mr. Justice Macintosh rejected this argument finding the Plaintiff acted reasonably in the agony of collision and that the Defendant was fully to blame. In reaching this conclusion the Court provided the following reasons: [8] Having found as I have regarding the turn signal, I add that the failure to signal is not the central concern in this case. If Ms. Carson had signalled at about the same moment she pulled out and drove into the traffic, the signal would have been of little or no assistance to anyone. The main problem was that Ms. Carson’s car darted out into traffic too quickly. The traffic was proceeding south on Blanshard immediately behind or beside her car when her car had been stopped in the commercial zone moments before that. She should have waited for a safe opening in the traffic, which might have entailed waiting where she was until the light changed so as to stop the southerly flow on Blanshard before cars started south onto Blanshard from Fort Street… [11] Proceeding through the green light southward on Blanshard were, first, the SUV, second, the plaintiff on his bicycle, and third, Mr. Enns in his car. The SUV, the plaintiff’s bicycle and the Enns car were thrown into disarray by the defendant driver pulling out too suddenly, immediately in front of the SUV. [12] I noted above that the SUV stopped before hitting the defendant’s car, but avoiding that collision was a near thing. The SUV had to stop very quickly. Mr. Enns veered his car toward the left; that is, toward the centremost of the southbound lanes on Blanshard, in order to avoid a collision. Meanwhile, the plaintiff on his bike had a matter of seconds to decide what to do. He was conscious from past experience that he risked being rear‑ended by the Enns vehicle if he stayed his course and simply braked, hoping to stop in time to avoid hitting the SUV. Instead, he steered his bike, to the right, into what appeared as a metre‑wide opening between the stopped SUV and a car parked on Blanshard, just south of the commercial zone. [13] As I noted above, Mr. Graham is an experienced cyclist, and hoping to avoid injury by driving into the space between the SUV and the parked car was not unreasonable in that dire circumstance, when there was no time and little opportunity to do anything else. [14] Unfortunately, that escape route did not save the plaintiff. His elbow hit the mirror of the parked car, breaking off the mirror. That impact drove him from his bike and injured him, thus giving rise to this claim… [16] My view of the evidence and my resulting findings of fact lead to my conclusion that the defendant driver is fully liable for the plaintiff’s injuries. The plaintiff was not contributorily negligent. He acted promptly and not unreasonably in a desperate situation, which was brought about entirely by Ms. Carson’s re‑entering traffic when her car should have stayed where it was until there was a safe opportunity to proceed.
Reasons for judgement were released last week by the BC Supreme Court, Prince George Registry, finding a motorist who was struck while stationary fully at fault for a collision.
In last week’s case (Hart v. Jackson) the Defendant lost control of his vehicle in winter driving conditions and drove into a snow bank. A good Samaritan helped him retrieve his vehicle leaving it facing southbound in the northbound lane. The Defendant’s vehicle’s wheel wells were packed with snow such that it could not be steered. The Defendant spend several minutes using a ice scraper to remove the snow. At the same time the Plaintiff vehicle was driving Northbound. When he realized the Defendant vehicle was in his lane he applied his brakes but could not avoid the collision.
In finding the Defendant fully at fault for the crash Mr. Justice McKinnon provided the following reasons: [15] In my view, Mr. Jacobsen was not a credible witness. He argued with plaintiff’s counsel, dismissed the plaintiff’s expert opinion about the Kia’s woeful lack of winter readiness, and generally set himself up as an expert northern driver fully alert and ready for winter conditions. [16] It was somewhat telling that even the defendant’s expert engineer was critical of the defendant’s position that “all weather tires” were perfectly adequate for northern winter driving. [17] The defendant testified that he drove at a constant speed of 75 KPH, which clearly was too fast, given the state of his vehicle, particularly the condition of his tires. Before the collision at issue in this case, the defendant’s vehicle began to slide as it rounded the curve referred to earlier and it ended up in the snow bank off the northbound lane. A passing motorist stopped to assist and pulled him out, leaving the Kia facing southbound in the northbound lane. According to Mr. Jacobsen he was “at most a foot away from the snow bank”. [18] Unfortunately, the wheel wells were packed with snow and thus the Kia could not be steered. The defendant had no shovel and so was reduced to chipping away at the wheel wells with a snow scraper to free up the steering. Although his vehicle was equipped with four way flashers he did not turn these on but did have his head lights on. [19] He said that as he was close to completing this task, he heard a flashing or skipping noise, turned to his left and saw a silver pickup sliding toward him. He said he turned and leaped into the ditch, never taking any strides. [20] Mr. Jacobsen denied ever admitting to either Mr. Landolt or Mr. Hart that the collision was his fault, indeed he capped that denial by asserting that “I was parked, it wasn’t my fault”. As stated earlier in this judgment, I did not find Mr. Jacobsen to be a credible witness. I found that the plaintiff and Mr. Landolt were credible and prefer their evidence over that of the defendant Jacobsen… [35] Mr. Jacobsen had his Kia parked in the northbound lane facing southbound. It is not entirely clear just how much of the Kia was in the northbound lane but it was to a substantial degree such that a northbound driver like Mr. Hart could conclude he was facing an immediate hazard. [36] The defendant was not just momentarily parked in this hazardous position but remained there for some 15 minutes, all the while scraping away at the wheel wells with a tool not designed for such work. Thus we have a vehicle, substantially in the northbound lane with a pedestrian walking around it posing an additional hazard to northbound traffic. The Kia’s head lights were on but the hazard lights were not. Given the curve and hump, the true nature of the hazard would not be readily apparent to the driver of a northbound vehicle until he rounded the curve and was so close to the parked vehicle that a collision was inevitable… [41] The two experts both agree that Mr. Jacobsen ought not to have been driving on “all season” tires which they testified were completely inappropriate for northern driving. [42] In my view, Mr. Hart was faced with the “agony of collision” doctrine. Given the curve and hump that obscured any clear view of just where the Kia was, he could not appreciate just what hazard was facing him. By the time he was able to see that the Kia was in fact parked substantially in his northbound lane there was almost no time to react. He cannot be faulted for opting to brake as opposed to some other manoeuvre: see Soto v. Peel, 2013 BCSC 409; Ayers v. Singh (1997), 85 B.C.A.C. 307, 69 A.C.W.S. (3d) 207; and Brook v. Tod Estate, 2012 BCSC 1947. [43] I also accept that Mr. Jacobsen had a duty to warn oncoming motorists of the hazard he had created by at least operating his four way flashers. The better course would have been to flag the curve with emergency reflectors but he had no such equipment: see Skinner v. Fu, 2010 BCCA 321.
Reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, assessing damages for a suprascapular nerve injury caused by a collision.
In this week’s case (Donovan v. Parker) the Plaintiff was involved in a 2009 crash. The Defendant admitted fault. The collision caused a nerve injury in the Plaintiff’s shoulder which resulted “in permanent damage to the infraspinatus and supraspinatus muscles of his left rotator cuff“. In assessing non-pecuniary damages at $90,000 Mr. Justice Baird provided the following reasons: [40] The plaintiff is a 39 year old man who has been reduced in his physical abilities because of his injuries. His previous activities such as skiing, camping, hiking, diving, swimming, rock-climbing and water-skiing have been much circumscribed. He has been negatively affected in his ability to engage in physical activities with his children, and he has become less useful around the home that he shares with his wife and family. His mood has been affected by persistent pain. He has been noted to be short-tempered with his wife, children, co-workers and friends. The medical evidence seems clearly to establish that his injuries are permanent and that he will have to be diligent in pursuing a course of exercise and physiotherapy to maintain his present functioning. [41] Of the cases relied on by the defendant under this heading of damages I find Langley v. Hepner, 2011 BCSC 179, Jurczak v. Mauro, 2013 BCSC 658, Durand v. Bolt, 2007 BCSC 480 and Cimino v. Kwit,2009 BCSC 912 to be roughly analogous to the present case. The plaintiff relied on Stapley v. Hejslet, 2006 BCCA 34, Power v. White, 2010 BCSC 1084, Dycke v. Nanaimo Paving and Seal Coating Ltd. and Foster, 2007 BCSC 455, Morlan v. Barrett, 2012 BCCA 66, all of which could legitimately be argued to be analogues with the case at bar. [42] Based on these authorities, I conclude that an appropriate range for non-pecuniary damages in this case is between $55,000.00 and $140,000.00. Relying especially on Cimino and Stapley, which I consider to be most similar to the present case, I think a fair, just and reasonable award would be $90,000.00.
Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, making an interesting award with respect to past wage loss covered by a sick leave plan.
In this week’s case (Bulpitt v. Muirhead) the Plaintiff, a firefighter, was injured in a 2007 collision. He did not suffer an actual wage loss as “he received all of the wages he would otherwise have received had the accident not occurred as sick leave benefits to which he was entitled as an employee of the City of New Westminster“. These benefits were subject to a subrogation agreement which was put into evidence. The court expressed concern about whether this was a sufficient basis to make an award for past loss of wages. Instead, the court did not award money for past wage loss but used its inherent jurisdiction to make a blanket order that the Defendant provide full indemnity to the plaintiff in respect of any amount of the judgement that the plaintiff is, or becomes, obligated to re-pay the City. In reaching this decision Mr. Justice Weatherill provided the following reasons: [102] The only evidence proffered by the plaintiff during the trial in respect of a claim for past wage loss came in the form of a letter dated June 6, 2008 from a payroll clerk with the City of New Westminster to ICBC. It states: “Please find enclosed the completed Certificate of Earnings form for [the plaintiff]. I am also attaching a copy of the subrogation agreement from the Collective Agreement for The City Firefighters’ Union, Local 256. The gross pay lost up to May 30, 2008 due to [the Accident] is $20,365.56. Please be aware that his sick claim is still ongoing so this figure is not a final amount. When a settlement has been reached, please forward to my attention the total amount of earnings lost due to this accident, plus any interest attributed to those earnings, payable to the City of New Westminster. This will allow us to credit Mr. Bulpitt’s sick plan and return any gratuity hours that he lost due to the accident. [Emphasis added] [103] The attached “subrogation agreement” states:
Sick Leave Recovery
a) An employee may use sick leave credits for time lost through accidental injuries PROVIDED THAT prior to making a claim or commencing an action for damages against a third party in respect of such injuries, he shall notify the Employer of such claim and enable the Employer the opportunity to be represented in all proceedings or settlement discussions relating to the claim. Any such claim shall include a claim for loss of wages including pre- and post- judgement interest, and to the extent that recovery is made, such amount will be reimbursed to the Employer. The Employer will reimburse the employee, fifty percent (50%) of the cost of the legal fees certified by the employee’s legal counsel as being attributed to providing the wage/benefit loss claim. [104] During argument at trial, I expressed to plaintiff’s counsel my concern that this evidence was insufficient to prove the employer’s right to make a subrogated claim for the wage benefits it had paid to the plaintiff while he was unable to work due to his Accident-related injuries… [108] Regardless, it is my view that the June 6, 2008 letter and the excerpted portion of the Collective Agreement is evidence that the plaintiff’s sick leave benefits were not as they would have been but for the Accident. Clearly, there was a benefit plan that had been negotiated by the City and the firefighters’ union the terms of which were contained in the Collective Agreement. Further, this letter is evidence of what it will take to restore the plaintiff’s sick leave plan to its pre-Accident status. [109] In all cases, the court retains residual power to grant appropriate relief through its inherent jurisdiction: Anderson v. Buydens, [1998] B.C.J. No. 2675 at para.16 (S.C.). In this case, a miscarriage of justice would result if the plaintiff was awarded nothing for past wage loss because he received benefits from his employer yet the employer was able to “claw back” those same benefits by way of a right of subrogation. I am satisfied that there ought to be a provisional award for past wage loss in this case. The plaintiff is entitled to full indemnity from the defendants in respect of any amount to which the plaintiff is or becomes obligated to re-pay to the City of New Westminster in respect of benefits he received as a result of the Accident.
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.
