At-Scene Admission Tips the Scales at Liability Trial

As previously discussed, admissions in the aftermath of a collision can be important evidence when a liability case proceeds to trial.  Reasons for judgement were released this week where such evidence was the crucial tipping point.
In this week’s case (Koshman v. Brodis) the parties were involved in an intersection collision. Both claimed to have a green light.  Both had independent witnesses confirming their versions of events.  Ultimately the Court held that while it was a close call the Plaintiff likely had the green light and held the Defendant fully at fault.  In reaching this conclusion the Mr. Justice Ehrcke provided great weight to an at-scene admission made by the Defendant.  The following reasons were provided:
[26]         A determination should not be made simply by counting the number of witnesses on each side, nor is the testimony of an off-duty police officer necessarily of more weight than that of a civilian witness.
[27]         Clearly, different people at the scene saw things differently, and have different memories of how this accident occurred. That is not particularly unusual in a trial such as this.
[28]         What is somewhat unusual in this case is that both the plaintiff and a neutral civilian witness, Mr. Fontaine, testified that after the collision the defendant acknowledged responsibility. The plaintiff testified that the defendant said to her at the scene that the accident was her fault. The defendant testified that if she said this, she did not mean to imply that she admitted liability. Mr. Fontaine testified that the defendant said to him, “Oh my God, I’m so sorry, I didn’t see the red light.” The defendant denies having said those words.
[29]         I do not accept the defendant’s explanation for what she said to the plaintiff at the accident scene, and I do not believe her denial of what she said to Mr. Fontaine. I am satisfied on a balance of probabilities that she did say these things, and she did so because she was aware that she had entered the intersection against a red light.
One matter of interest that did not appear to be canvassed was whether this admission should have been admitted give section 2 of BC’s Apology Act which holds that an apology “does not constitute an express or implied admission of fault or liability by the person in connection with that matter,” and that it “must not be taken into account in any determination of fault or liability in connection with that matter.”

admissions against interest, Apology Act, bc injury law, Koshman v. Brodis, Mr. Justice Ehrcke

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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.

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