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
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with this issue. In short the Court held that certain factual observations contained in the report were admissible as they met the ‘necessary and reliable‘ exceptions to the hearsay rule. The opinion evidence, however, was excluded.
In today’s case (Andrews v. Mainster) the Plaintiff had cognitive limitations and these were tested by a neurupsychologiest one year following the collision. The expert died before trial. In admitting the factual portions of the report but excluding the opinion evidence Mr. Justice Pearlman provided the following reasons:  I return now to Dr. Kay’s report. Dr. Kay’s report provides the only evidence of a comprehensive neuropsychological evaluation of the plaintiff’s cognitive functioning one year post accident. The necessity requirement is met with respect to those portions of Dr. Kay’s report that deal with his testing and evaluation of the plaintiff’s level of cognitive functioning. I also find that those parts of Dr. Kay’s report that record the history he took from Ms. Andrews, discuss the tests he administered and set out his opinions on the results of his testing of the plaintiff’s cognitive functioning meet the threshold of reliability required for their admission into evidence. Dr. Kay was a neuropsychologist trained and experienced in the use of the standardized tests he administered to the plaintiff. Those tests provide a largely objective measure of the plaintiff’s cognitive functioning. These factors, combined with Dr. Kay’s certification of the duties he owed to the court as an expert provide sufficient circumstantial guarantees of the trustworthiness of this evidence to satisfy threshold reliability.  Different considerations apply respecting Dr. Kay’s opinion or diagnosis of post-traumatic stress disorder, his prognosis, and his opinion on the motor vehicle accident as a cause of the plaintiff’s emotional and psychological disorders. Those opinions have a significant subjective component. They are not predicated upon the objective results of his testing of the plaintiff’s cognitive capacity. The nature, extent and sources of the plaintiff’s psychological difficulties both before and after the motor vehicle accident are all in issue in this litigation. There is also a live issue about whether the plaintiff fully disclosed relevant information concerning her psychological condition and the various stressors that affected her from time to time to the counsellors, psychologists and psychiatrists who have treated or examined her.  Defence counsel requested production of Dr. Kay’s file, including his interview notes, in order to determine whether it might shed any additional light on the plaintiff’s complex psychological history. The file has not been produced and apparently is not available. Dr. Kay’s report also refers to a diary kept by the plaintiff following the motor vehicle accident, which has not been produced, and to the plaintiff having seen Ms. Tracy Good for counselling for family and relationship issues for 11 years. Ms. Good informed counsel that she has shredded all of her records. If true, that effectively precludes exploration of a potentially valuable source of information concerning the causes of the plaintiff’s emotional and psychological disorders before and after the motor vehicle accident.  In light of the subjective nature of the evidence concerning the causes and nature of the plaintiff’s emotional and psychological disorders, and the gaps in the documentary record that I have discussed briefly, I am not satisfied that Dr. Kay’s professional training as a psychologist and the certifications contained in his report provide an adequate guarantee of the trustworthiness of his opinions on these matters to meet the threshold of reliability for their admission into evidence. In the circumstances of this case, there is no adequate substitute for cross-examination of the expert.  Further, the test of necessity is not met for Dr. Kay’s diagnosis of and prognosis for the plaintiff’s emotional and psychological disorders. Relevant direct evidence is available from another source. The plaintiff has a comprehensive opinion from Dr. O’Shaughnessy on the nature and causes of the plaintiff’s disorders, their relationship to the motor vehicle accident and their treatment.  Accordingly, I conclude that those portions of Dr. Kay’s report beginning at page 20 under the heading “Psychological Explanations” and continuing with the prognosis, opinion and recommendations at pages 21 through 23 do not satisfy the tests of necessity and reliability and are therefore inadmissible. The balance of Dr. Kay’s report, with those redactions, will be admitted into evidence.
(Update: November 6, 2012 – the trial judges liability decision was upheld by the BC Court of Appeal in reasons for judgement released today)
In my effort to archive ‘voir dire‘ rulings dealing with civil procedure issues in personal injury cases, I summarize recent reasons for judgement released by the BC Supreme Court, New Westminster Registry, addressing the admissibility of a Plaintiff’s post accident statement to police.
In last week’s case (Nerval v. Kherha) the Plaintiff was involved in an intersection collision in Abbotsford in 2007. She sued for damages. Following the collision the Plaintiff provided a statement to the investigating officer regarding the circumstances of the crash. At trial the Plaintiff testified as to how the collision occurred. She also wished to introduce her statement to the investigating officer. The Defendant objected arguing this statement could not properly be admitted. Mr. Justice Armstrong agreed and ruled that the statement was inadmissible. The court provided the following concise reasons:
Ms. Nerval applied to tender her statement to Cst. Baskin because she could not recall the events surrounding the collisions. A voir dire was held. Cst. Baskin reported that Ms. Nerval had told him that she was making a left-hand turn to go westbound on Sandpiper. At the time there was a van facing southbound indicating a left turn and an intention to go eastbound on Sandpiper. She said she did not see any other motor vehicle coming towards her. She did not remember if she had her signal light on; there was no mention of a signal light in his notes. Ms. Nerval told him that the other van had its signal on. That is the totality of his conversation with Ms. Nerval.
The defence opposed the admission of this statement into evidence on the basis that it fails to meet the requirement of necessity. The defence argues that to be admissible the statement must be used to rebut an allegation of recent fabrication, be a prior inconsistent statement, or be a statement contemporaneous with an event reported in the statement.
I conclude that the statement is not admissible. The circumstances under which the statement was taken do not reflect that it was taken contemporaneously with the event. The evidence did not support the suggestion that it was a contemporaneous report. There was no suggestion that the statement was inconsistent with the evidence given by Ms. Nerval at the trial and no suggestion that the there was an allegation of recent fabrication of evidence.
If I am wrong in my conclusions regarding the admissibility of the statement, I would otherwise have concluded that the statement did not contain any information that materially augmented the evidence of Ms. Nerval at trial.
When presenting an injury claim with a future care component expert evidence is often called to address not only the future care required, but also the cost of future care. These experts sometimes rely on hearsay evidence in discussing the costs of the items recommended for future care. Can this evidence be admitted? This question was squarely answered in a 2008 ICBC UMP Arbitration which I summarize in my continued effort to create a searchable UMP caselaw database.
In the 2008 decision (MEN NN and DN v. ICBC) the Claimants sought damages following the wrongful death of their father/husband following a motor vehicle collision. The matter was arbitrated under UMP. In support of their claim the Claimants sought to introduce an expert report from a rehabilitation consultant to address future care needs for the surviving family members. ICBC objected to this report on several grounds. One of ICBC’s objections was that the report relied on hearsay evidence in addressing future care costs. Arbitrator Yule rejected this argument and admitted the report (with a few modifications based on other objections). In addressing the hearsay component Arbitrator Yule provided the following useful reasons: 18. As noted previously, the Report as it applies to the claims of DN and NN also includes the commercial cost of various services such as courier service, handyman service, storage locker fees, taxis and airfares. The cost of various services is considered to be within the scope of opinion evidence customarily given by rehabilitaiton experts notwithstanding that, to some extent, it may be hearsay information obtained from other service providers. Cost of care expers routinely include informaiton regarding the costs of services in their reports. In Jacobson v. Nike (1996) BCLR (3d) 63, the cost of care experts were Ms. Schulstad, a nurse with experience and education in rehabilitation nursing, and Ms. Harris, whose background was in occupational therapy. Levine J. (as she then was) accepted these witnesses as qualified to provide expert evidence concerning both the care required and the costs of providing it. At paragraph 185 the Judge said: I am satisfied from the evidence of his injuries and function and of the clinical records that the plaintiff requires personal attendant care and homemaker services to sustain or improve his physical and mental health. I am also satisfied that consultants with the experience, skill and training of Ms. Schulstad and Ms. Harris are qualified to assess his specific care needs and to provide expert evidence concerning the care required to meet his medical needs and the costs of providing for them. In MacDonald v. Neufeld, [Vancouver Registry, September 3, 1993] the cost of care expert, Mr. Simpson, included in his report the cost of airplane tickets and other expenses for a travelling companion. 19. As a practical matter, the admissibility of costing information on this basis makes eminent sense. If it were not admissible as part of Ms. Stewart-Blair’s report, then one of the Claimants could herself make the same inquiries, but adducing the evidence in that fashion would be subject to the same objection as hearsay. Thus, in the absence of admissions, the various service providers themselves would have to give evidence which would be both an inconvenience to them and an inefficient use of Hearing time. Accordingly, I rule that the costs information in the Report of commercially provided services in relation to the claims of DN and NN is admissible.
For more on this topic from a Judicial authority, the latest case from the BC Court of Appeal is worth reviewing for their practical take on the role hearsay evidence can play in expert reports.
Expert reports often contain hearsay evidence. This is especially true in personal injury cases where expert witnesses review pages upon pages of clinical notes of other physicians in arriving at their opinions. Today the BC Court of Appeal released useful reasons for judgement confirming that hearsay evidence does not render an expert report inadmissible. The Court further noted that some types of hearsay evidence in expert reports, even if not independently proven at trial, does not necessarily nullify the experts opinion.
In today’s case (Mazur v. Lucas) the Plaintiff was injured in a 2006 BC motor vehicle collision. At trial the Plaintiff tendered the report of a psychiatrist. The trial judge ordered that hearsay portions of the report be redacted and did not permit opposing counsel to cross examine the expert with respect to the redacted portions of the report. Ultimately the Jury awarded the Plaintiff $528,400 in damages.
The Defendant appealed arguing that the trial judge incorrectly redacted hearsay from the expert reports and unreasonably restricted the cross-examination. The BC High Court agreed and ordered a new trial. In doing so the Court repeated the following very useful quote from Mr. Justice Sopinka addressing the reality of hearsay in medical diagnosis:
“A physician, for example, daily determines questions of immense importance on the basis of the observations of colleagues, often in the form of second- or third-hand hearsay. For a court to accord no weight to, or to exclude, this sort of professional judgment, arrived at in accordance with sound medical practices, would be to ignore the strong circumstantial guarantees of trustworthiness that surround it, and would be, in my view, contrary to the approach this Court has taken to the analysis of hearsay evidence in general, exemplified in Ares v. Venner,  S.C.R. 608”
The BC Court of Appeal went on to provide the following useful summary of hearsay evidence in expert reports in personal injury lawsuits:
 From these authorities, I would summarize the law on this question as to the admissibility of expert reports containing hearsay evidence as follows:
· An expert witness may rely on a variety of sources and resources in opining on the question posed to him. These may include his own intellectual resources, observations or tests, as well as his review of other experts’ observations and opinions, research and treatises, information from others – this list is not exhaustive. (See Bryant, The Law of Evidence in Canada, at 834-835)
· An expert may rely on hearsay. One common example in a personal injury context would be the observations of a radiologist contained in an x-ray report. Another physician may consider it unnecessary to view the actual x-ray himself, preferring to rely on the radiologist’s report.
· The weight the trier of fact ultimately places on the opinion of the expert may depend on the degree to which the underlying assumptions have been proven by other admissible evidence. The weight of the expert opinion may also depend on the reliability of the hearsay, where that hearsay is not proven by other admissible evidence. Where the hearsay evidence (such as the opinion of other physicians) is an accepted means of decision making within that expert’s expertise, the hearsay may have greater reliability.
· The correct judicial response to the question of the admissibility of hearsay evidence in an expert opinion is not to withdraw the evidence from the trier of fact unless, of course, there are some other factors at play such that it will be prejudicial to one party, but rather to address the weight of the opinion and the reliability of the hearsay in an appropriate self-instruction or instruction to a jury.
 The common law is supplemented by the Rules of Court concerning expert reports. The Rules of Court in force at the time of this trial required an expert to state “the facts and assumptions upon which the opinion is based”. (Rule 40A(5)(b)). Rule 11-6(1) which replaces Rule 40A requires the expert to state:
(f) the expert’s reasons for his or her opinion, including
(i) a description of the factual assumptions on which the opinion is based,
(ii) a description of any research conducted by the expert that led him or her to form the opinion, and
(iii) a list of every document, if any, relied on by the expert in forming the opinion.
 New Rule 11-6 expands on what an expert was required to state under old Rule 40A, but does not alter the general principle that it is essential for the trier of fact to know the basis of an expert opinion so that the opinion can be evaluated. The Rule has a dual purpose. The second purpose is to allow the opposing party to know the basis of the expert’s opinion so that they or their counsel can properly prepare for, and conduct, cross-examination of the expert, and if appropriate, secure a responsive expert opinion. Thus, the result of these reasons would be the same if this case had arisen under the new Rules. There is nothing in these Rules touching directly on the question of the admissibility of hearsay evidence in expert reports.
I have previously written (here and here) that Plaintiff’s need to be wary if relying on a radiologists findings in support of a personal injury claim at trial and ensure that the evidence is independently proven at trial. Today’s case appears to potentially soften this requirement somewhat.
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.
Hearsay evidence is an out of Court statement introduced at trial for the truth of its contents. In British Columbia hearsay evidence is admissible in certain circumstances. BC Courts apply a ‘principled exception‘ to the general rule against hearsay evidence in circumstances where there is sufficient ‘necessity and reliability‘.
What happens if a key witness dies before a personal injury claim in BC heads to trial? Can previously recorded evidence from that witness be introduced under this ‘principled exception‘? Reasons for judgement were published this week on the BC Supreme Court website dealing with this issue.
In this week’s case (Simon v. Portsmith) the Plaintiff suffered very serious injuries when he was struck by a vehicle as he was walking along a highway in Salmon Arm, British Columbia.
A key question at trial was weather the owner of the vehicle consented to the driver operating the car. Another important issue was where the Defendant driver lived at the time of the accident. The owner of the vehicle could have been ‘vicariously liable‘ for the driver’s actions depending on the answers to these questions.
A witness by the name of Mr. Stushnov was expected to give evidence on where the alleged driver was living at the time of the crash. Prior to trial Mr. Stushnov swore an affidavit setting out his evidence on this point. The witness died unexpectedly prior to trial. The Defendant tried to introduce the affidavit as evidence. The Plaintiff objected. Mr. Justice Boyce let the evidence in providing the following useful analysis:
 In the case at bar, the plaintiff concedes that the evidence is necessary. Mr. Stushnov is no longer available to testify. The issue is whether the evidence meets the threshold reliability test.
 The evidence was taken under oath before a lawyer. Mr. Stushnov was not involved with the events giving rise to this claim in any way. There is no suggestion that he had any personal relationship with Mr. Portsmith other than by providing him a place to live for a period of time. There is no suggestion of any reason that he might have to not tell the truth. He had no interest in the outcome of this proceeding. He was an independent witness.
 It is of course true that the plaintiff would now have no way to test Mr. Stushnov’s credibility through cross-examination. However, as counsel for the plaintiff on this motion frankly stated, when the matter was before the court on the Rule 18A application, the credibility of Mr. Stushnov was not in issue and was not raised. What was in issue was the credibility of Mrs. Bostock.
 Further, as noted by counsel for the defendant, plaintiff’s counsel has known since 2005 what evidence Mr. Stushnov was expected to give. They chose not to interview the witness to test his credibility.
 This evidence is clearly important to the defence. In my view, despite the fact that the plaintiff does not have the ability to cross-examine the deponent, which is something that is often the case when resort has to be made to hearsay evidence, the circumstances surrounding the making of the statement provide sufficient safeguards of reliability to justify its admissibility. The affidavit will therefore be received in evidence.
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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