Defendant Called During Plaintiff's Case in Traumatic Brain Injury Claim
In most BC Supreme Court lawsuits Plaintiff’s obtain evidence from the opposing side prior to trial by way of examination for discovery. Helpful portions of the discovery transcript are then read into the trial record in support of the Plaintiff’s claim. This is a controlled way to lead helpful evidence from a potentially damaging source.
There is, however, another way (albeit a riskier way) to use the Defendant in support of a Plaintiff’s claim. The Rules of Court allow one party to call an “adverse party” as part of their case in chief with delivery of a subpoena and witness fees. Rule 12-5(22) goes further and allows a Plaintiff to put the Defendant on the witness stand without notice if the Defendant is “in attendance at the trial“. Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, demonstrating this seldom used option in action.
In last week’s case (Rintoul v. Gabriele) the Plaintiff pedestrian was struck while in a cross-walk. The Plaintiff was born without upper limbs and after being struck “would have been unable to break her fall. In landing on the pavement, she hit her head and was briefly unconscious“.
Both liability and quantum (fault and value of the case) were at issue with the Defendant arguing the Plaintiff was to blame at least in part for the collision and that her on-going issues were not related to the brain trauma suffered in the collision. Mr. Justice Saunders disagreed and found the Defendant fully at fault for the impact. In the course of the trial the Plaintiff’s lawyer took advantage of Rule 12-5(22) and put the Defendant on the stand as their first witness. Damaging admissions were extracted which could not be remedied when the Defendant was re-called as a witness in the Defence case. In highlighting this interesting turn of events Mr. Justice Saunders provided the following reasons:
[7] The defendant, Ms. Gabriele, was in attendance on the first day of trial. She was called to the witness stand as the first witness for the plaintiff’s case, and cross-examined…
[14] Ms. Gabriele testified that she was turning her vehicle and had just started to enter the pedestrian crosswalk, going perhaps 10 or 15 km/h, when she felt a bump, and saw a flash of a face in her headlights. She stopped and got out, and ran to the front of her vehicle. The plaintiff was lying unconscious in the crosswalk.
[15] Ms. Gabriele was not challenged on her estimate of her speed.
[16] Ms. Gabriele was asked why she did not, after looking to the right, look to the left again before making her turn, to see if any of the pedestrians she had previously seen on the southeast corner were walking in the crosswalk. She replied, “I made a mistake”….
[24] There was a break in the trial of just over two months. During that time period, Ms. Gabriele walked through the accident scene with her counsel. After the trial resumed, Ms. Gabriele was called to give evidence as part of the defence case. Testifying in chief, she gave a slightly different version of events. She said in her evidence in chief that after looking at the southwest corner, she looked back in front of her, did not see anything, and then proceeded to make her turn.
[25] I do not accept this second version of events…
The Court went on to conclude that the Plaintiff did suffer from long term consequences as a result of her injuries and assessed global damages at just over $950,000 including non-pecuniary damages of $175,000. In addition to the above point of civil procedure, this case is worth reviewing in full for Mr. Justice Saunders lengthy discussion of the expert evidence called to address the issue of the Plaintiff’s traumatic brain injury.
