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BC Court of Appeal Discusses Dual Role of Treating Physician as Expert and Lay Witness

Written by ERIK MAGRAKEN on . Posted in Uncategorized.

Informative reasons for judgement were published last week by the BC Court of Appeal discussing the scope of what is permissible when a treating physician is called both as an expert witness and a lay witness (witness of fact).

In the recent case (Ford v. Lin) the Plaintiff was injured in a vehicle collision and sued for damages.  Following trial the Plaintiff appealed arguing treating physicians were unduly restricted by the trial judge when testifying.  The BC Court of Appeal found that no error occurred.  In doing so the Court provided helpful discussion on two points.  First the scope of permissible examination in chief from a party’s own expert under the current BC Supreme Court Rules.  Second the scope of permissible lay evidence that can be called from the same expert.

On the first point the Court noted as follows:

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"It Is Not Necessary To Call Expert Evidence On Each Issue"

Written by admin on . Posted in Uncategorized.

In recent years expert evidence has become more common in injury litigation and it is not unusual to see litigants sometimes err on the side of overkill.  To this end helpful comments were recently released by the BC Supreme Court, Kelowna Registry, highlighting this practice and reminding litigants expert evidence can be used judiciously.
In the recent case (Truax v. Hyrb) the parties were involved in a collision and fault was at issue.  The Defendant brought an application seeking a dismissal of the lawsuit and argued that the Plaintiff failing to adduce expert engineering evidence should lead to an adverse inference.  In rejecting this suggestion Mr. Justice Dley provided the following comments about the over-use of expert evidence:

[20]         The defence argues that the failure by the plaintiff to introduce engineering evidence of the collision is “telling” and that an inference should be drawn against Mr. Truax. I agree that the absence of engineering evidence is telling – there is no need to call such expert evidence when common sense prevails.

[21]         Litigation has become a costly venture; oftentimes unnecessarily so. Litigants are far too quick to secure expert testimony when it is not required. Perhaps that is out of an abundance of caution and concern that the absence of expert evidence will be a failing of counsel.

[22]         Each case should be considered on its unique circumstances. It is trite to say that it is not necessary to call expert evidence on each issue. Expert testimony should be restricted to those matters where it would actually assist the court because the evidence is so specialized, scientific or complex. Expert evidence should not be viewed as a default or automatic step in litigation strategy.

 

Clinical Experience and the "Novel Science" Objection to Expert Evidence

Written by admin on . Posted in BCSC Civil Rule 11, independent medical exams, Uncategorized. 54 Comments on Clinical Experience and the "Novel Science" Objection to Expert Evidence


One of the recognized objections to the introduction of expert opinion evidence in a personal injury trial relates to the opinion relying on novel or untested scientific theory.  Reasons for judgement were released last week by the BC Court of Appeal addressing this objection and taking a practical view of the benefits of experts providing opinions based on their years of experience in a clinical setting.
In last week’s case (Cassells v. Ladolcetta) the Plaintiff was injured in a 2005 collision.  He suffered from a pre-existing condition, namely psoriatic arthritis.  The Plaintiff presented evidence that this condition was aggravated due to the trauma of the collision.  This evidence was accepted at trial and damages were assessed accordingly.
The Defendant appealed arguing the medical opinion was based on novel science.  The BC Court of Appeal disagreed finding the foundation for an expert opinion can be laid based on clinical experience.  In dismissing the Appeal the Court provide the following reasons:

[13] The defendants challenged reliance on Dr. Gladman’s evidence on essentially the same basis at trial as they do now.  Their contention was and remains that her opinion was based on what they say is novel science: no scientific data established, beyond mere speculation, that her “theory” was valid.  They say that at most the theory is an unproven hypothesis.  They cite the criteria for evaluating the soundness of novel science found in R. v. Mohan, [1994] 2 S.C.R. 9, 89 C.C.C. (3d) 402, as drawn from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), and discussed in Taylor v. Liong, 2007 BCSC 231, [2007] 7 W.W.R. 50.

[14] The judge said the criteria pertain to the admissibility of expert evidence.  Admissibility requires the weighing of threshold reliability.  No issue had been taken with the admissibility of Dr. Gladman’s opinion which it was evident is consistent with a widely held belief in the scientific community.  Quoting from R. v. Terceira (1998), 38 O.R. (3d) 175, 123 C.C.C. (3d) 1 (C.A.), aff’d [1999] 3 S.C.R. 866, to the effect the threshold test of reliability must adapt to changing circumstances, the judge said that, in the face of studies that did reflect a wide provisional acceptance of Dr. Gladman’s hypothesis, the lack of a conclusive study should not be fatal to either the admissibility or the weight of her opinion.

[15] Unlike instances where, as in Taylor, the opinion of an expert which is shown to be no more than uncertain theory has been ruled inadmissible, here, as the judge said, Dr. Gladman expressed her opinion on the basis of what she said she had seen in response to trauma among her patients with psoriatic arthritis.  What is said to be the inconclusive literature she referenced was, as the judge said, not the only foundation for the opinion she held.  It was an opinion based on thirty years of her experience.

[16] The judge reached the ultimate conclusion he did concerning the aggravation of the respondent’s psoriasis and psoriatic arthritis relying on the evidence of the various physicians whose opinions he had to consider.  Dr. Gladman’s opinion on the effect of trauma on psoriatic arthritis is consistent with the other opinion evidence which the judge found acceptable, as well as with the evidence of the respondent’s medical condition and, for that matter, the deterioration in his life after the accident.  I do not consider there to be any sound basis on which it can now be said the judge made an overriding and palpable error in concluding the respondent’s psoriasis and psoriatic arthritis were aggravated by trauma and stress attributable to the accident by relying on Dr. Gladman’s opinion.

Lies, Damn Lies and Statistics: Present Value Tables and Your Personal Injury Claim

Written by admin on . Posted in ICBC Wage Loss, Uncategorized. 57 Comments on Lies, Damn Lies and Statistics: Present Value Tables and Your Personal Injury Claim


No this post isn’t meant to take a swipe at economists, I just needed to get your attention since I’m discussing the ever exciting topic of positive and negative contingencies in creating present value tables.
Economic evidence often plays an important role in personal injury trials.  Competing experts often have different opinions as to which statistics should be used in valuing the present value of future losses.  Reasons for judgement were released this week by the BC Court of Appeal discussing these contingencies.
In today’s case (Towson v. British Columbia (Public Safety and Solicitor General)) the Plaintiff was involved in a 2002 BC motor vehicle collision.  Her vehicle was struck by an RCMP officer who ran a red light.  While fault was disputed at trial the RCMP officer was found fully responsible for the collision.
The Plaintiff suffered various injuries including a traumatic brain injury resulting in a post-concussion syndrome.  This in turn was largely disabling.   The $1.1 million damage assessment included non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) of $185,000 and a diminished earning capacity assessment of $725,000.
The Government appealed for various reasons although they were unsuccessful with the trial award being largely upheld.   Among the unsuccessful arguments was an allegation that the trial judge erred in her assessment of diminished earning capacity.  In rejecting this argument the Court  provided the following comments about the different contingencies used by competing economists:

[30] The parties each called a witness to give expert opinion evidence in economics and both expert witnesses provided present value tables based on assumptions each specified.  The experts, Mr. Pivnenko for the respondent, and Mr. Hildebrand for the appellant, were both qualified to give opinion evidence in the area of economics.  Mr. Pivnenko provided present value tables regarding the cost of future care which were very similar to the figures Mr. Hildebrand provided.  However, the evidence given by the two experts diverged on the present value tables each provided for use in arriving at future loss of earning capacity.  The difference is readily explained by the assumptions each took into account.

[31] Mr. Pivnenko provided present value tables which took into account the survival rates for B.C. women but did not take into account any other contingencies.  Based on that assumption only, Mr. Pivenko stated that the present value of an annual sum of $1,000 per year from the trial date to the respondent’s 65th birthday was $22,716.

[32] Mr. Hildebrand’s present value tables took into account not only survival rates, but also negative labour market contingencies based on an average B.C. female high school graduate.  The latter contingencies he took into account included the individual’s propensity to participate in the labour force, part-time work, and unemployment.  Mr. Hildebrand applied a 40.1% discount for those contingencies, and, on that basis, he arrived at a present value of an annual sum of $1,000 per year from the trial date to the respondent’s 65th birthday of $13,609.  Mr. Hildebrand also testified that the overall contingency applicable to B.C. men with the same degree of education would be 20% to 25% rather than 40.1%….

[37] A review of Mr. Hildebrand’s evidence in cross-examination shows that in using a 40.1% negative labour market contingency, he was reflecting only negative contingencies and he agreed that the individual circumstances of a claimant would have to be considered in arriving at any percentage contingency adjustment.

[38] It is plain from her reasons that the judge did not accept that Mr. Hildebrand’s 40.1% negative labour market contingency ought to be applied, without modification, to a projection of the respondent’s likely income from employment to age 65.  The judge found, among other things, that the respondent was “in a better position than the average B.C. high school graduate at the time of the accident, because of her job at the [Justice Institute]”.  The judge also found “a realistic chance” that the respondent “would have attained promotions, and that she would have continued to work despite having children”.

[39] It is also plain from her reasons that the judge did apply a negative contingency discount well beyond the survival rates for B.C. women, which Mr. Pivnenko had used to arrive at the present value of an annual sum of $1,000 per year from the trial date to the respondent’s 65th birthday of $22,716…

[41] For the trial judge to arrive at the present value figure to be applied in this case, taking into account both positive and negative contingencies, could not be an exercise in precision.   To the extent that such an exercise is susceptible of explanation, the trial judge provided more than adequate reasons.  From her reasons, it is plain that she considered the respondent’s chances of recovery to be poor.  In view of that finding, and the legal principles she set out by reference to relevant case authorities, I see no reason to conclude that the trial judge overlooked the slight chance of the respondent recovering to the point of being able to seek some employment.

Prior Expert Reports, Cross-Examination and Notice

Written by admin on . Posted in BCSC Civil Rule 11, Civil Procedure, Uncategorized. 50 Comments on Prior Expert Reports, Cross-Examination and Notice


When a Plaintiff is cross examined in the trial of a personal injury claim can opinions from medico-legal reports from prior litigation be introduced into evidence without complying with the notice requirements set out in the Rules of Court?  Reasons for judgement were recently released by the BC Supreme Court addressing this issue.
In the recent case (Hosking v. Mahoney) the Plaintiff was injured in three separate motor vehicle collisions.  The first collision was in 2000, the second in 2001 and the third in 2004.
The Plaintiff advanced claims for compensation as a result of all three collisions.  In the course of the first two claims the Plaintiff’s physician authored a medico-legal report in 2003 addressing the extent of her injuries.  The Plaintiff settled both these claims prior to her third collision.
The claim arising from the third collision did not settle and proceeded to trial.  At trial the Defendant introduced the prior medico-legal report during cross examination.  The Court allowed this and further permitted the previous opinion to go into evidence even though the usual notice requirements for the introduction of opinion evidence were not complied with.  In permitting this evidence to be introduced Mr. Justice Warren provided the following reasons:
[171] I found the medical opinion of Dr. Gurdeep Parhar, the plaintiff’s attending physician for the first two accidents and the author of the medical/legal report of March 10, 2003, important and difficult to resolve with the evidence and submissions of the plaintiff that she had largely recovered prior to the February 2004 accident.  This evidence was entered by the defendant when cross-examining the plaintiff and was not rebutted or varied by Dr. Parhar who was not called to testify.  The court is entitled to draw an adverse inference when a witness who could provide relevant evidence on an issue before the court, is not called.  In my view the defendant was entitled to rely upon the letter and opinion of Dr. Parhar without providing the usual notice.  It was a report prepared for and at the request of the plaintiff and it was identified and portions adopted by the plaintiff in cross-examination.  The plaintiff had the opportunity to call Dr. Parhar or evidence to rebut the opinion or to object to its introduction prior to its use in cross-examination.

The Significant Role of Expert Evidence in Personal Injury Trials

Written by admin on . Posted in BCSC Civil Rule 11, ICBC Brain Injury Cases, ICBC Head Injury Cases, Uncategorized.

When presenting a claim at trial dealing with future loss it is vital to have appropriate expert evidence to justify sought damages.  Failure to do so can result in a dismissal of the sought damages even if they are unopposed.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry highlighting the importance of medico-legal evidence in personal injury trials.
In this week’s case (Moore v. Briggs) the Plaintiff suffered a fractured skull (fractured left temporal bone) and a brain injury in a 2003 assault.

The Plaintiff sued those he claimed were responsible for the assault.  One of the Defendant’s did not respond to the lawsuit and the Plaintiff obtained default judgement against him.  The Plaintiff asked the Court to award substantial damages including an award for diminished earning capacity.  Despite the Plaintiff’s assessment of damages being unopposed the Plaintiff was only awarded a fraction of his claimed damages and he received nothing for future loss.
In assessing non-pecuniary damages at $40,000 and dismissing the claim for diminished earning capacity Madam Justice Dillon provided the following reasons:

[11] As a result of the assault, the plaintiff continues to have some problem with memory. This has improved over time such that it does not interfere with work or enjoyment of life, but still lingers. He also has difficulty with attention span and focus. He continues to have almost daily headaches. These often interrupt his sleep. He noticed that eye near the indentation in his temple was “lazy”, a couple of times a week at first and now hardly noticeable.

[12] For about four years after the assault, the plaintiff had problems with balance such that he could not walk a straight line and was dizzy when he looked down. He wanted to obtain employment as a greenhand on the log booms but did not consider that he could do the job. This would have increased his hourly pay to $24. Few details were provided about this job prospect. There was no medical evidence to support this inability and the plaintiff testified that any problems with balance had now resolved…

[17] Here, there is evidence of a small depressed comminuted fracture of the left temporal bone that resulted in some memory and motor impairment. From the testimony of the plaintiff, it appears that the motor impairment has resolved over time. There continue to be memory problems, the exact nature of which has not been assessed on a current basis. There are also some continuing headaches that are attributed to the fracture in 2003. The plaintiff lost about two months work and has successfully resumed his career and achieved advancement. His social life appears stable and normal. Any present loss of enjoyment of activities is because of lack of interest as opposed to ability…

[22] After consideration of these authorities and in consideration of the plaintiff’s description of his injury, and given the lack of medical information, non-pecuniary damages are assessed at $40,000…

[24] The plaintiff also claims loss of future earning capacity because of inability to obtain employment on the log booms. He calculated this amount based upon expectations of work life to age 65 at the remuneration rate that he said he would have received as a greenhand. This is contrary to the capital asset approach which has been adopted in this Court (Parypa v. Wickware, 1999 BCCA 88 at para. 63). However, the evidence on this aspect of the claim is scant and unsupported by any medical or actuarial evidence. Further, the plaintiff had successfully advanced in his work at present and said that this is his employment of choice. Further, there was no evidence that his employment aggravated his symptoms. The plaintiff must establish that there is a real and substantial possibility that his earning capacity has been impaired to some degree as a result of the injuries sustained in the assault (Romanchych v. Vallianatos, 2010 BCCA 20 at para. 10). In my view, there is little likelihood of any substantial possibility of an actual income loss in the circumstances here. There is nothing to suggest that the plaintiff will be unable to perform the tasks required in his work of choice. Nothing is awarded under this head of damage.

"Functional Assessment Biomechanical System" Permitted for First Time in BC Injury Trial

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The Functional Assessment Biomechanical System (“FAB”) is a motion capture system that tracks and measures body movements and biomechanical forces.  It has been used in recent years during work capacity evaluations.
Last year the inventor of the FAB attempted to have the system’s measurements introduced in two separate personal injury trials (you can click here and here to read my summaries of those cases).  Both times the trial Judges refused to let the evidence in finding that the inventor was not candid about his financial interests associated with system and further that the system did not meet the judicially required threshold of reliability.
More recently, in the trial of Carr v. Simpson the FAB’s inventor took a third kick at the can and attempted to have his system’s measurements introduced at trial.  This time he was forthright about his financial interest in the product.  This change in candour seemed to make all the difference with Mr. Justice Bernard allowing the FAB’s measurements to be introduced at trial.  Mr. Justice Bernard gave the following reasons permitting FAB measurements into evidence:

[11]         In the case at bar, Mr. McNeil testified with knowledge of the rulings in Rizzolo and Forstved, and the plaintiff has endeavoured to have Mr. McNeil address the evidentiary problems and shortcomings which were identified in these earlier cases. I am satisfied that in his present testimony Mr. McNeil has been more forthright about his role as inventor of FAB and of his financial interest in it. It seems that in both Rizzolo and Forstved it was Mr. McNeil’s lack of candour, rather than his inventor/owner status per se, which was particularly troubling to the court. I am not persuaded that the now more candid Mr. McNeil should be precluded from giving expert testimony merely because he has a financial interest in FAB, in the absence of other evidence which might call into question his independence.

[12]         In relation to the reliability of FAB and proof thereof, the evidence establishes that it is a measuring tool, albeit a technologically-advanced one, rather than a diagnostic instrument per se. The distinction is, in my view, important.

[13]         The science about which Mr. McNeil testified is the assessment of the human body’s functional capacity. This science is well-recognized by the courts, and its application generates findings which may be of assistance to the court and which could not likely be made without such evidence. It is not a novel science. The introduction of a novel measuring instrument in the application of a science does not make the science, itself, novel. For example, the advent of MRIs did not make orthopaedic medicine a novel science; accordingly, I am not persuaded that the cautious approach to admissibility (as suggested in R. v. J.-L.J. [R. v. J.J.], 2000 SCC 51, [2000] 2 S.C.R. 600, and adopted in Forstved), including the threshold burden imposed upon the tendering party, obtains. This is particularly so in non-jury trials in which the judge’s “gate-keeper” function has much reduced significance.

[14]         I do not mean to suggest by any of the foregoing that the reliability of the tools employed by experts may not be challenged in an attempt to undermine the factual underpinnings of a diagnosis or assessment; however, unless the undermining renders the opinion virtually valueless, it will go to the weight of the opinion and not to its admissibility. In the instant case, I am not satisfied that the evidence elicited from Mr. McNeil in cross-examination so weakened his opinion as to render it of no value and, therefore, inadmissible. As already noted, only Mr. McNeil testified in the voir dire, and the defendant elected to call no evidence on the issue of the reliability of FAB.

[15]         In summary, I am satisfied that the evidence tendered in this case relating to: (a) the reliability of FAB, and (b) Mr. McNeil’s financial interest in FAB, falls far short of establishing a reasonable basis for excluding the opinion evidence of Mr. McNeil. It remains open to the defendant to argue that these factors, to the extent that they are established by the evidence, affect the weight to be attached to Mr. McNeil’s opinion.

The New BC Supreme Court Rules and "Responsive" Expert Reports

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 7, independent medical exams, Uncategorized. 122 Comments on The New BC Supreme Court Rules and "Responsive" Expert Reports


Important reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, interpreting and applying Rule 11-6(4) for the first time.  This rule deals with “responsive” expert opinion evidence.
Under the old Rules of Court parties could call responsive expert evidence without notice provided the evidence was truly responsive.  The new rules of court changed this and require responsive expert reports to be served 42 days ahead of the scheduled trial.
In today’s case (Wright v. Bower) the Plaintiff was involved in a motor vehicle collision and alleged chronic back pain as a result of the crash.  Her lawyer served expert reports addressing these injuries in compliance with the time lines set out in the rules of court.  The Defendant brought a motion to compel the Plaintiff to attend an examination with an orthopaedic surgeon in order to obtain a ‘responsive’ report.  The Plaintiff opposed arguing that an examination was not necessary for the Defendant to obtain a truly responsive report.  Mr. Justice Savage agreed with the Plaintiff and dismissed the motion.  In doing so the Court provide the following useful reasons setting the parameters for responsive expert evidence:

[12]         Rule 11-6(4) was enacted to fill a lacuna in the Rules.  Under the former Rules, Rule 40A permitted parties to call expert evidence in reply without notice at trial.  In order for such evidence to be admitted, however, it had to be truly responsive to the expert evidence of a witness called by the opposing party.

[13]         In Stainer, supra, the British Columbia Court of Appeal considered Rule 40A(3) and the scope of the Court’s discretion to admit responsive evidence.  At paragraphs 16-18, Finch J.A. said:

[16]      …The admission of expert evidence is now governed by Rule 40A(3)

An expert may give oral opinion evidence of a written statement if the opinion has been delivered to every party of record at least sixty days before the expert testifies.

[17]      That rule applies equally to all parties.  In the normal course, a defendant will wish to protect his right to adduce expert evidence at trial by giving the notice required by that rule.  But the court retains a discretion to admit responsive evidence of which notice has not been given:  Pedersen v. Degelder (1985), 62 B.C.L.R. 253 (B.C.S.C.); Kroll v. Eli Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7 (S.C.); and Kelly v. Kelly (1995), 20 B.C.L.R. (3d) 232 (S.C.).  In the latter case Mr. Justice Williamson said:

I would restrict, of course, as courts I think must, the practice of having opinion evidence without notice strictly to truly responsive rebuttal evidence, and I think that if that rule is carefully observed, there should be no difficulties.

[18]      That is, in my respectful view, a correct statement of the proper practice. …

[15]         Amongst other things, the parties argued before me regarding whether the new Rules have substantively changed the practice which existed under Rule 40A.  They agreed that this is an important practice point, and a case of first impression.

[16]         Rule 40A gave the Court discretion to admit responsive evidence of which notice had not been given.  Rule 11-6(4) now provides that notice must be given of responsive expert evidence (although I note that the Court retains discretion to admit expert evidence of which sufficient notice has not been given).

[17]         I would expect that, in the ordinary course, an examination would be ordered under Rule 7-6(1) where a person’s medical condition was in issue in an action, provided it was requested in a timely way.

[18]         However, at this point in time in the action, the defendants are limited to what Mr. Justice Williamson referred to in Kelly, supra, as “truly responsive rebuttal evidence”.  The application must be considered in that light; the question on this application is not one of notice, but whether the Examination should be ordered to enable the defendant to file responsive evidence.  The authorizing Rule, 7-6(1) uses the term “may”.

[19]         In Kroll v. Eli Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7, Sanders J., as she then was, noted that “true response evidence, does not permit fresh opinion evidence to masquerade as answer to the other side’s reports”.

[20]         In C.N. Railway v. H.M.T.Q. in Right of Canada, 2002 BCSC 1669, Henderson J. considered the admissability of “reply reports” holding that only the portions of the reports that provided a critical analysis of the methodology of the opposing expert were admissible as responsive evidence.  The portions of the reports describing the authors’ own opinions on the matters in issue were not admitted.

[21]         In this case, the defendants do not explain why an examination is required in these circumstances, other than a statement by a legal assistant that counsel says such is “necessary to properly defend this action and to respond to the reports of Dr. Weckworth and Dr. O’Connor”.  Master McCallum in White v. Gait, 2003 BCSC 2023 declined to order an examination where it had not been shown why such was required to produce a responsive report.

[22]         In my opinion, the bare assertion reported to a legal assistant in this case is insufficient to support an order under Rule 7-6(1) that the plaintiff attend the Examination, when the defendants are limited to providing response reports under Rule 11-6(4).  In the circumstances, the application is dismissed.  The plaintiff is entitled to costs of the application.

More on Out of Court Statements and Their Use at Trial in ICBC Injury Claims

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 52 Comments on More on Out of Court Statements and Their Use at Trial in ICBC Injury Claims


Further to my two recent articles discussing this topic (these can be found here and here) reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, demonstrating yet again the powerful impact out of court statements can have in an ICBC claim.
In today’s case (Aymont v. Capp) the Plaintiff sustained serious injuries in a 2004 BC motor vehicle collision.  She was driving a Mazda Protege and was exiting a gas station parking lot.  She intended on turning left.  As she entered the roadway the Defendant approached from her left hand side.  A ‘t-bone’ type of collision occurred.
The Plaintiff testified at trial that when the Defendant’s vehicle struck hers she was at a stop and her vehicle had not entered the roadway and was “two feet before the fog line“.  The Defendant disagreed and testified that as he approached the gas station the Plaintiff pulled her vehicle into his lane of travel leaving inadequate time to avoid the collision.
During trial the Plaintiff was confronted with various out of Court statements attributed to her where she discussed the collision.  These included statements given to ICBC, a police officer and a chiropractor.  These previous statements were summarized as follows by Madam Justice Gropper:

[9]             The day following the accident, May 15, 2004, Ms. Aymont went for treatment to her chiropractor’s office, Dr. Susan Holroyd.  She says that she felt dizzy and nauseous, disoriented and in a great deal of pain that morning.

[10]         Dr. Holroyd produced her clinical records, which included a “motor vehicle accident history” form.  Ms. Aymont says that she does not recall the form or filling it out.  She cannot recall if it is her handwriting on the form or not.  The handwritten notations (in italics)  on the form state, in relation to the accident:

State How Accident Happened in your own words.

I had stopped at the entrance of gas st. looked both ways saw no one and began onto road – was hit by a truck travelling very fast.

Where you stopped Yes/No?

No [circled]

Estimate your speed?

10 km/h

Brakes on Yes/No?

No [circled]…

[13]         Cst. Rudy Andreucci telephoned Ms. Aymont the day following the accident and they arranged to meet on Sunday, May 16, 2004 at the RCMP Detachment in Westbank.  Cst. Andreucci testified that the purpose of the meeting was to give Ms. Aymont a traffic violation ticket. Cst. Andreucci served a violation ticket on Ms. Aymont for a breach of s. 176(2) of the Motor Vehicle Act: emerging vehicle: failure to yield.  He noted on the reverse side of the ticket what Ms. Aymont said to him:

04-5-16 V.T issued at office dri Nancy Aymont advised she just didn’t see him.  She knows better-than go on without being sure….

[15]         On May 21, 2004, Ms. Aymont met with Mr. Bonner of the Insurance Corporation of British Columbia (“ICBC”) at his office.  Mr. Bonner is a bodily injury adjuster.  He was the adjuster assigned to Ms. Aymont’s file.  Another adjuster was assigned to Mr. Capp’s file.  Mr. Bonner said that he asked questions and typed the answers into the ICBC note taking system on his computer.  He prepared a sketch based on the information provided to him by Ms. Aymont.  In the statement Mr. Bonner recorded Ms. Aymont stating:

I looked to my right first, and then the left and Bartley Road was vacant, and I thought to myself how often does that happen on a Friday afternoon.  After looking right, then left, I looked right again, and that is the last thing I remember…  If the other driver wasn’t going so fast he probably could have stopped.  My husband drove the road the next day.  At the 50 km/h speed limit, and stopped without skidding before the driveway… I was knocked out and can’t say how far I pulled forward from the exit onto Bartley Road before being hit.

[16]         Ms. Aymont also provided a rough sketch showing where the vehicles were as she approached the exit.

[17]         Ms. Aymont does not recall saying “I can’t say how far I pulled out from the exit onto Bartley before being hit.”

[18]         Mr. Bonner produced a hard copy of the statement for Ms. Aymont to review.  She thought that the second page statement was “all mixed up.”  Ms. Aymont says she made certain corrections to the statement in handwriting.  The last sentence of the statement is “I have nothing to add to this statement, which is true to the best of my memory.”  Ms. Aymont signed the statement….

The Court ultimately rejected the Plaintiff’s evidence and accepted the Defendant’s.  This verdict was largely reached based on the Plaintiff’s prior statements.  Madam Justice Gropper gave the following useful reasons demonstrating the damage that can be done with ‘prior inconsistent statements‘:

[77]         Mr. Capp’s evidence that the Aymont vehicle was moving when he first observed it is consistent with the statements that Ms. Aymont made to her chiropractor.  In the form that she completed, or directed Dr. Holroyd to complete, she says that she was not stopped and was moving at about 10 km/hour.  In her statement to Cst. Andreucci she stated that she just did not see Mr. Capp’s vehicle.  She told Mr. Bonner that she had pulled forward from the exit onto Bartley Road before being hit.  All of these statements are consistent with the circumstances that Mr. Capp describes.

[78]         I find as a fact that Ms. Aymont was not stopped “well before the fog line”.  She was moving from the exit into the southbound lane of travel on Bartley Road.  She was going slowly, likely less than 10 km/hour.  Her foot was not on the brake.  She was not looking in the direction of the oncoming traffic, but was engaged in a conversation with her son Joel who was sitting in the passenger seat, and had turned her face toward him to talk about his drink.

[79]          Ms. Aymont did not yield the right of way to Mr. Capp who was the dominant driver. …

[82] In all of the circumstances, I find the plaintiff is 100% at fault for this accident.

This case is also worth reviewing for the Court’s discussion of the duties of expert witnesses.  Both the Plaintiff and the Defendant retained experts to give accident reconstruction evidence.  The Plaintiff’s expert was soundly criticized for giving evidence as an “advocate” instead of a neutral witness.  The criticism can be found at paragraphs 66-73.