Section 2 of BC’s Apology Act 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.” Although this law has existed for several years it has received little judicial attention. In one of the first cases that I’m aware of addressing this section, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, relying on this statute.
In this week’s case (Dupre v. Patterson) the parties were involved in a bike/vehicle collision. Fault was disputed. After the collision the cyclist apparently apologized to the motorist. Madam Justice Adair found the motorist solely at fault for the crash and before reaching this conclusion had the following brief comments about the application of the apology act to the cyclist’s roadside statements:  Defence counsel pointed to some statements made by Ms. Dupre to Ms. Patterson after the accident, when Ms. Dupre apologized. In view of my conclusion that Ms. Patterson’s negligence caused the accident, I will address this point only very briefly.  First, it was unclear, based on the submissions, how I was being asked to use Ms. Dupre’s statements and whether they were admissible for the purpose for which they were being tendered. Secondly, it is clear that an apology made by or on behalf of a person in connection with any matter does not constitute an express or implied admission or acknowledgment of fault or liability: see the Apology Act, S.B.C. 2006, c. 19, s. 2.  Ms. Dupre explained that when she spoke to Ms. Patterson after the accident, she was upset and in considerable pain from falling and injuring her shoulder, and she felt embarrassed by the attention the accident had caused. She did not remember saying anything about having over-extended or pushed herself too far on the bike ride. Roadside admissions at accident scenes are unreliable, since people tend to be shaken and disorganized. This describes Ms. Dupre’s situation. Her statements do not affect my conclusion that Ms. Patterson’s negligence caused the accident.
Reasons for judgement were released this week by by BC Supreme Court, Chilliwack Registry, addressing the issue of implied or express owner consent following a motor vehicle collision involving an impaired driver.
In this week’s case (Gibbs v. Carpenter) the Defendant Carpenter was driving a vehicle owned by the Defendant Kusch. She denied giving him permission to drive the vehicle. He was “impaired by alcohol” when he “crossed the centre line and collided head on” with the Plaintiff vehicle.
Mr. Justice Joyce had to decide whether there was consent for him to drive. There was conflicting evidence on this point and the Court ultimately made the call that there was no express or implied consent letting the owner off the hook. Prior to deciding this issue the Court grappled with whether a written statement the owner gave the police was admissible.
In the aftermath of the collision the owner provided the police with a verbal statement indicating that consent for the trip was not given or if it had been the owner expected someone else to drive. This statement was admitted into evidence The owner provided a more fullsome written statement to the police following this. The owner attempted to get the written statement into evidence arguing it formed part of the original statement or in the alternative that it was needed to rebut an allegation of recent fabrication. Mr. Justice Joyce disagreed and excluded the statement. In doing so the following useful summary of the law was provided:  I am unable to agree that the written statement forms part of one continuous statement, given the intervening events. It is not as though the statement was given at the scene mere minutes after the first conversation. Ms. Kusch went home, slept, spoke to her father about what had happened and it was upon his suggestion that she prepared a written statement. Ms. Kusch had the opportunity to reflect and consider what information she would include in her statement. In my view, it cannot be considered a mere continuation of the earlier oral statement.  As for the submission that the written statement should be admitted to clarify the equivocal oral statement, the trial was the opportunity to testify whether the oral statement was made or not, whether it was accurate or not, whether Constable Wright’s version of what Ms. Kusch said was complete, or whether his recall and recording of the statement were incomplete. I, therefore, do not accede to Mr. Harris’ first ground.  I am also of the opinion that the statement is not admissible as a prior consistent statement rebutting an allegation of recent fabrication.  In R. v. Stirling, 2008 SCC 10 [Stirling], Mr. Justice Bastarache reviewed the principles applicable in determining when prior consistent statements can be led to rebut an allegation of recent fabrication and how such statements, if admitted, are to be used. The context in which the issue arose in Stirling is set out in paras. 1 – 2:..  Thus, the purpose of the prior consistent statement is to remove a potential motive to fabricate and a trial judge may consider the removal of this motive when assessing the witness’s credibility.  In the recent decision delivered from the Ontario Court of Appeal, R. v. Kailayapillai, 2013 ONCA 248 at para. 41, I note that Mr. Justice Doherty adopted the phrase “motive or reason” to fabricate and discussed the importance of the timing of the statement in relation to when the motive or reason arose:  … The value of the prior consistent statement does not rest exclusively in its consistency with the evidence given by the witness at trial. It is the consistency combined with the timing of that prior statement. As the statement was made before the alleged motive or reason to fabricate arose, the statement is capable of rebutting the suggestion made by the cross-examiner that the witness’s evidence is untrue because it was fabricated for the reason or motive advanced in cross-examination. The witness’s evidence is made more credible to the extent that the asserted motive or reason advanced for fabrication has been negated by the evidence of the prior consistent statement: see R. v. Stirling, 2008 SCC 10,  1 S.C.R. 272, at paras. 5-7. [Emphasis added.]  Once admitted, the trial judge may not use the prior consistent statement for the truth of its contents. At para. 11 of Stirling, Bastarache J. said:  Courts and scholars in this country have used a variety of language to describe the way prior consistent statements may impact on a witness’s credibility where they refute suggestion of an improper motive. …. What is clear from all of these sources is that credibility is necessarily impacted ? in a positive way ? where admission of prior consistent statements removes a motive for fabrication. Although it would clearly be flawed reasoning to conclude that removal of this motive leads to a conclusion that the witness is telling the truth, it is permissible for this factor to be taken into account as part of the larger assessment of credibility.  In the present case, any reason that Ms. Kusch may have to fabricate a story was clearly present at the time she prepared her type-written statement. She faced having to explain to her father, a police officer, how an inebriated young man with a learner’s permit came into possession of her car and came to be involved in a serious car accident. She may very well have appreciated that there might be insurance implications arising out of who was driving. She may also have been influenced by the advice of her father in forming her statement. The statement was not prepared prior to the existence of a reason to fabricate; it was formed afterward. In my view, it does not have any probative value and does not fall within the exception to the general rule that excludes prior self-serving statements. It is not admissible.
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:  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.  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.  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.  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.”
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
As a monopoly insurer ICBC usually fulfills 2 roles in BC auto injury claims. First ICBC is responsible for processing claims for Part 7 Benefits. Second ICBC is usually behind the defence of tort claims against at fault motorist in British Columbia. For anyone involved in a BC vehicle collision it’s important to appreciate this dual role before contacting ICBC to discuss your claim. I discussed this earlier this year in the below video:
Since ICBC is in the business of defending tort claims you need to be aware that statements you make to your adjuster can be used against you in your personal injury trial as ‘admissions against interest‘. Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, demonstrating this.
In today’s case (Cross v. Cross) the Plaintiff was involved in a 2008 collision. Both the Plaintiff and Defendant were insured with ICBC. The Plaintiff was disabled from work for several months following the collision. He dealt with ICBC directly following the crash and discussed his injuries and disability.
At trial ICBC’s adjuster testified about these discussions in support of an argument that the Plaintiff’s wage loss was not entirely due to the collision but also due to other factors. Mr. Justice Williams rejected this submission and awarded the Plaintiff damages for his wage loss claim.
Despite the lack of success behind the adjusters evidence, this case demonstrates that ICBC adjusters can and do use statements made by individuals against them in the course of a personal injury lawsuit. The Court provided the following reasons addressing the Plaintiff’s wage loss claim and the adjuster’s evidence:
 There was another point raised by Ms. Chiasson that is relevant to the issue at hand. She reports that, at or near the conclusion of the program, she “discussed return to work plans with Russell and he stated at the present time he does not have transportation to his pre-injury employment and therefore has not contacted his employer regarding a return to work.”
 This is something of a recurring theme for the defence. The insurance adjuster who had conduct of the file testified as to a conversation that she had with the plaintiff, enquiring about his status and his return to work. She says he told her he was not back at work and when she asked why, part of his answer was to the effect that he didn’t have transportation to get there. He also made reference to his doctor’s advice…
Finally, there is the matter of the plaintiff having told Ms. Chiasson and the adjuster that getting to work would be a problem. I accept that there were conversations of that general tenor. However, I also accept the evidence of the plaintiff that he had the means available to him to get to work. The reason he didn’t go back was because his injuries were still active to an extent that they rendered him unable to do the physical work his job required…
 In view of the findings I have made, it follows that the plaintiff is entitled to recover his wage loss from the date of the accident through to the point in time that he returned to work, June 1, 2009.
 Counsel have agreed that the quantum of that loss is $35,767.
After a collision the parties involved often speak with each other inquiring whether they’re OK, exchanging insurance information and even discussing whose at fault. Admissions made in these conversations can be used in Court against the party making the admission and such evidence can prove fatal in a personal injury lawsuit as was demonstrated in reasons for judgement released today by the BC Supreme Court.
In today’s case (Barrie v. Marshall) the Plaintiff motorcyclist rear-ended a vehicle driven by the Defendant. The Plaintiff sued arguing that the Defendant was at fault claiming that she had suddenly and unexpectedly stopped her vehicle in front of the Plaintiff leaving him inadequate time to stop. The Defendant disagreed and gave evidence that she activated her turn signal and was slowing to make a right hand turn when she was rear-ended.
The Court ultimately accepted the Defendant’s version of events over the Plaintiff’s and dismissed the personal injury lawsuit. In reaching this decision the Court placed a great deal of weight in admissions the Defendant made in the aftermath of the collision. Madam Justice Adair set out the following in demonstrating the negative impact out of court ‘admissions’ can have in a lawsuit:
 Two members of the Abbotsford Police, Constables Davidson and Zawadsky, attended at the scene. Both testified at trial. They arrived after the ambulance, and found Mr. Barrie’s motorcycle in the intersection and Ms. Marshall’s car on the shoulder of Marshall Road. The gist of the officers’ evidence is that they carried out a brief investigation, spoke to both Mr. Barrie and Ms. Marshall, and concluded that the collision was Mr. Barrie’s fault. This conclusion was based at least in part on a statement that Constable Zawadsky testified Mr. Barrie made to him (parts of which Constable Davidson testified he overheard) to the effect that he (Mr. Barrie) was not paying attention and ran into the back of Ms. Marshall’s car. Mr. Barrie denies making any such a statement to anyone, although he did testify that he told Ms. Marshall the accident was probably his fault.
 Of course, the evidence concerning Mr. Barrie’s statement or statements at the scene is not conclusive of fault or liability. However, it is evidence I can consider in determining liability on the facts of this case…
The existence of such a statement provides a reasonable explanation for the conduct of the officers at the time in relation to the accident, and the lack of further investigation. The officers were satisfied that Mr. Barrie had assumed responsibility for collision. Neither of the officers was told anything to contradict what Mr. Barrie told Constable Zawadsky.
 I find therefore that Mr. Barrie, an inexperienced driver, was operating his motorcycle without due care and attention, and was following Ms. Marshall’s vehicle too closely as they travelled north on Mt. Lehman Road. As a result, Mr. Barrie was unable to avoid colliding with Ms. Marshall’s car when she went to make a right turn onto Marshall Road from Mt. Lehman Road…
 In summary, Mr. Barrie has not discharged the onus on him to show that he was not at fault for the collision. Rather, Mr. Barrie’s conduct caused the collision.
 It follows that Mr. Barrie’s action is dismissed
The bottom line is that if you are involved in a collision you need to know that admissions can be used against you in subsequent court proceedings. If you are interested in this topic you can click here to read another case where a post-accident admission proved fatal to a party in a personal injury lawsut.
Hearsay is an out of Court statement introduced at trial for the truth of its contents. Generally hearsay evidence is not admissible in Court but there are several exceptions to this.
One well established exception to the hearsay rule is the rule of “admissions against interest“. If a party to a lawsuit says something that hurts their interests that statement can generally be admitted in Court for its truth. Reasons for judgement were released today discussing this important principle in a personal injury lawsuit.
In today’s case (Jones v. Ma) the Plaintiff was injured in a BC motor vehicle collision. After the crash the Plaintiff approached the Defendant and the Defendant admitted fault. The Plaintiff then asked the Defendant’s permission to record their discussion using her cell-phone. The Defendant consented and repeated this admission of fault.
In the formal lawsuit the Defendant denied being at fault for the crash and instead sought to blame the Plaintiff. At trial the Plaintiff introduced the the cell phone recording into evidence. The Defendant objected arguing that this was inadmissible hearsay. Mr. Justice Ehrcke disagreed and admitted the evidence finding that if fit the “admissions” exception to the hearsay rule. In reaching this decision the Court provided the following useful summary and application of the law: …the admissibility of an out of court admission by a party to a lawsuit….was specifically addressed by the Ontario Court of Appeal in R. v. Foreman (2002), 62 O.R. (3d) 204 (C.A.). In that case Doherty J.A., delivering the judgment of the Court, said at pages 215 to 216:
Admissions, which in the broad sense refer to any statement made by a litigant and tendered as evidence at trial by the opposing party, are admitted without any necessity/reliability analysis. As Sopinka J. explained in R. v. Evans  3 S.C.R. 653, at page 664:
The rationale for admitting admissions has a different basis than other exceptions to the hearsay rule. Indeed, it is open to dispute whether the evidence is hearsay at all.The practical effect of this doctrinal distinction is that in lieu of seeking independent circumstantial guarantees of trustworthiness, it is sufficient that the evidence is tendered against a party. Its admissibility rests on the theory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements. As stated by Morgan, “[a] party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of oath” (Morgan, “Basic Problems of Evidence” (1963), pp. 265-6, quoted in McCormick on Evidence, ibid., p. 140). The rule is the same for both criminal and civil cases subject to the special rules governing confessions which apply in criminal cases. [Emphasis in original].
 I agree with that statement of the law. It was adopted by our Court of Appeal in R. v. Terrico, 2005 BCCA 361. Admissions made by one party to litigation are generally admissible if tendered by the opposing party, without resort to any necessity/reliability analysis.
 The evidence tendered by the plaintiff in this case of her conversation with the defendant Ma at the scene of the accident is admissible in evidence.
 The cell phone recording which was marked as Exhibit A on the voir dire and the transcript of the recording which was marked as Exhibit B may now both be marked as exhibits on the trial proper.
 The fact that the defendant did not understand at the time of the conversation that what she said might be used in litigation is not a basis for excluding the evidence. This is a civil case. Unlike a criminal case, there is no issue here about voluntariness of a statement to a person in authority and no issue about compliance with the requirements of theCanadian Charter of Rights and Freedoms. Counsel for the defendant agrees that the plaintiff was not a person in authority and that she was not a state agent, as those terms are used in the context of confessions in criminal cases.
 The defendant’s concern that only part of the conversation was recorded, that the defendant had hurt her head, that the defendant did not know the use to which the recording would be put, and that the statement might therefore not be reliable, are matters that can be explored in cross-examination and may go to the weight to be attached to this evidence. They do not form a basis for the exclusion of the evidence.
I’ve said it before an I’ll say it again, the issue of FAULT and ICBC claims tends to be most heavily disputed when dealing with left hand turning vehicles in intersection crashes. Reasons for judgement were released today determining fault as a result of a 2004 intersection crash that occurred in Vernon, BC.
The Plaintiff was travelling through the intersection. The Defendant, travelling from the opposite direction, was intending to make a left hand turn. A significant collision happened. The issue of fault was decided by Mr. Justice Brooke.
This is an interesting case because it appears that the Plaintiff suffered a serious brain injury (a frontal lobe injury) as a result of this crash. When motorists suffer from brain injuries in car accidents it is not unusual for them to suffer a period of amnesia, either before, during or after the event. Here it appears that the trauma of the crash caused the Plaintiff to have no recall of the crash.
How then, do you prove your case when you can’t remember what happened? This case shows some of the usual trial strategies in such a situation. In this case the defendant’s examination for discovery transcript was utilized, lay witnesses were called, the investigating police officer who took scene measurements was called as to where expert accident reconstruction witnesses.
In the end the court found that the Plaintiff vehicle was speeding at the time of the crash and that the left turning driver failed to see a ‘dominant’ vehcile that was ‘there to be seen’. The court reference s. 174 of the BC Motor Vehicle Act in finding the left hand turner largely at fault. The court also found the speeding ‘through’ driver at fault.
In BC personal injury claims, if both parties are at fault the court has to determine the degree of fault of each party. Here the court assigned 20% of the blame to the speeding through vehicle and 80% against the left hand turning vehicle.
One matter worth noting is the effect of the traffic ticket. Here the defendant was ticketed for ‘failing to yield on a left-hand turn.’. He paid the ticket. Such an act is an ‘admission against interest’ and a court can use this ‘admission’ to help decide who is at fault. However, such an admission is not binding on the court. Here the defendant testified that when he gets a ticket he pays it. The court found him to be a straighforward and credible witness and accpeted that in not disputing the ticket that spoke to his characger rather than admission of fault.
If you would like further information or require assistance, please get in touch.
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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