(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.