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.
 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.
Generally speaking a person is not allowed to call evidence of ‘prior consistent statements‘ at trial. The reason is because this offends the rule against hearsay and is an improper attempt to bolster witness credibility. There is a powerful exception to this general rule, however, and this relates to allegations that a witness is fabricating their court-room evidence. This exception was demonstrated in reasons for judgement released today by the BC Supreme Court, New Westminster Registry, in a personal injury lawsuit arising from a hit and run accident.
As I’ve previously written, injury victims have the right to sue ICBC for damages when involved in hit and run accidents in BC. These are commonly referred to as section 24 claims because injury victims involved in unidentified motorist claims gain the right to sue ICBC directly through section 24 of the Insurance (Vehicle) Act.
ICBC often defends section 24 claims by denying the existence of the unidentified motorist and blaming the Plaintiff for their own injuries. When this happens the ‘recent fabrication‘ exception is triggered in effect opening the floodgates for corroborating evidence at trial.
In today’s case (Jennings v. Doe) the Plaintiff was injured when a tractor trailer cut him off and forced his vehicle off the road. The Driver of the tractor-trailer left the scene and the Plaintiff could not identify him. The Plaintiff sued ICBC directly for his injuries. ICBC defended the claim denying the existence of the tractor trailer. The Plaintiff attempted to call evidence of prior consistent statements corroborating his courtroom evidence. ICBC objected arguing this was not permissible. Madam Justice Baker disagreed and allowed the evidence in. In doing so the Court gave the following very useful reasons:
 Counsel for the defendants objected to the admission of the testimony of Mr. Simon and Mr. Jennings, Sr., and various documents indicating that Mr. Jennings did, at the earliest opportunity, and consistently since that time, claim that the accident had been caused by the actions of the driver of a tractor-trailer unit. Counsel submitted, correctly, that previous “consistent” statements of a witness are normally not admissible for the truth of their contents, or to buttress the credibility of a trial witness’ testimony. The defendants say they are not asserting a “recent” fabrication, although by implication they are asserting that Mr. Jennings has fabricated a story about how the accident happened.
 In my view, earlier decisions of this court establish that in circumstances such as these, the previous out-of-court statements are admissible and relevant not for proof of the truth of the out-of-court statements but to rebut any inference that a claimant is lying because he failed to assert his present version of events at the first and any subsequent opportunity when it would be reasonable to expect him to do so, or had made inconsistent claims in the past about the circumstances of the accident.
 In Vanderbyl v. Insurance Corporation of British Columbia, (1993) 79 B.C.L.R. (2d) (S.C.), at paras. 37 and 38, Mr. Justice Trainor, an experienced trial judge, set out a list of elements to be considered in assessing the credibility of a plaintiff in cases such as these. Among the elements identified by Justice Trainor were the following:
1. Whether the plaintiff reported the existence of the unidentified vehicle as soon as reasonably possible to the police or other persons in authority and to I.C.B.C.
2. Whether the description of the unidentified motor vehicle given by the plaintiff was as specific as might reasonably be expected from the particular plaintiff in the circumstances.
3. Whether the plaintiff’s testimony at trial is consistent with statements given to the police, doctors or medical attendants, family members, associated or other witnesses or to I.C.B.C.
4. Whether the plaintiff has called witnesses to testify to whom statements were made or who might testify about the plaintiff’s actions after the incident.
8. Whether the plaintiff’s actions following the accident are consistent with those one might reasonably expect of a person in similar circumstances.
 In this case, Mr. Jennings reported the existence of the unidentified vehicle as soon as reasonably possible to the police and to the Insurer. Mr. Jennings told drivers who stopped at the scene and the ambulance attendant ? Mr. Simon ? that a tractor-trailer unit had been involved and he attempted to make a report to police at the scene, but was prevented from doing so by the ambulance personnel who were concerned about his physical injuries. Mr. Jennings Sr. reported the involvement of a second vehicle to the Boston Bar RCMP Detachment on the day of the accident. Mr. Jennings Sr. reported the circumstances to the dial-a-claim adjuster by telephone and Mr. Jennings made a statement in person and in writing to an adjuster a few days after the accident. The evidence of Mr. Simon about Mr. Jennings’ anger and his physical condition when assessed at the accident scene is consistent with what one might reasonably expect of a person in similar circumstances. I believe Mr. Jennings, and I accept his testimony about how the accident happened.
When advancing a hit and run ICBC claim it is good practice to review hospital, ambulance, police and other records to look for ‘prior consistent statements’ in the event ICBC alleges recent fabrication at trial.
ICBC Injury Claims tend to be record heavy. It is important to understand the types of records that are typically used in ICBC claims and how these records can be used.
One of the most frequent records reviewed and used by lawyers involved in these cases are clinical records of treating physicians. These records can be a rich source of information documenting a person’s complaints of injury, course of improvement, medical advice prescribed and other useful information.
When ICBC claims proceed to trial these records are often put to some use by the lawyers involved. The extent to which each lawyer can use the records varies. For example, a Plaintiff’s lawyer usually can’t use the records to corroborate the Plaintiff’s evidence at trial as doing so can offend the rule of bolstering a clients credibility by leading evidence of ‘prior consistent statments’.
ICBC Defence lawyers, however, often use prior recorded statements when cross-examining a Plaintiff with respect to injuries sustained in an ICBC claim. This is one of the most frequent uses made of clinical records in ICBC claims.
It is important for lawyers and clients alike to understand the use that can be made of clinical records at both examinations for discovery and trial in their ICBC Injury Claims.
Reasons for judgment were released today by the BC Court of Appeal shedding light on this topic. In today’s case the Plaintiff was awarded damages as a result of a 2005 motor vehicle collision. The defendant appealed claiming that the damages awarded were excessive in the circumstances and that the trial judge made several errors. In dismissing the appeal the BC Court of Appeal noted that while some errors were made none of these prejudiced the Defendant in the trial. In doing so the court made some comments on the use to which clinical records can be made at trial. I reproduce the highlights of this discussion below:
Medical Records Issues
 During cross-examination of the plaintiff’s family physician, Dr. Dwyer, counsel for the defendant asked to have his clinical notes admitted as an exhibit. Counsel stated that the defendant intended to rely on the absence from the notes of any notation of a complaint by the plaintiff related to limitations on his work capacity, particularly with respect to script writing. Dr. Dwyer testified that he would have noted such complaints if they had been made to him. Counsel argued that the clinical notes were admissible as business records under s. 42 of the Evidence Act, R.S.B.C. 1996, c. 124. The trial judge questioned the admissibility of the portions of the notes that recorded the plaintiff’s complaints of symptoms. He distinguished between the doctor’s notes of the results of his physical examination of the plaintiff and notes of the plaintiff’s subjective complaints to the doctor. The trial judge considered the plaintiff’s statements to be hearsay. He questioned the evidentiary value of the records apart from the doctor’s testimony, pointing out that the doctor was entitled to refer to his notes to refresh his memory and “there’s nothing preventing you from exploring all of these questions with this witness.”
 The trial judge summarized his conclusions as to the attempted use of the notes to discredit the plaintiff’s account of symptoms in these terms (at paras. 35 to 37):
I accept Mr. Bancroft-Wilson’s evidence in regard to the onset of the headaches, and their intensity, frequency, and endurance. Efforts to discredit him with alleged inconsistencies in doctors’ clinical notes were, in my view, not successful. It must be borne in mind that the primary objective of physicians’ clinical notes is to refresh their own memories as to what transpired during a clinical examination, for the purposes of medical treatment. These notes are not made for investigative and litigation purposes. If this were the purpose then it would, in my opinion, be important for physicians to ensure that they have accurately recorded full and detailed accounts of what a patient said during a clinical visit and then have the patient verify the accuracy of the notes.
Physicians are not investigators. They are neither trained to accurately record what a person says nor to draw out a fulsome account for litigation purposes. The use of clinicians’ notes, made hastily during a clinical visit and never reviewed for accuracy by the patient, may operate unfairly to the patient as plaintiff or witness. It should also be borne in mind that when a patient sees his or her physician with a complaint of significant pain, the circumstances are far less from ideal for obtaining full and accurate information.
I do not suggest by any of the foregoing that it is impermissible to use clinical notes to challenge a plaintiff’s credibility, but the frailties inherent in such recordings should be recognized. In the instant case, I find that the clinician’s notes do not have sufficient accuracy and reliability to undermine the plaintiff’s evidence where the notes allegedly differ from the plaintiff’s testimony at trial.
 The defendant contends that the trial judge erred in law by refusing to admit the clinical notes as admissions against interest. This Court in Samuel v. Chrysler Credit Canada Ltd., 2007 BCCA 431, 70 B.C.L.R. (4th) 247, has recently confirmed that statements made by a plaintiff to doctors and recorded in clinical notes are hearsay and not admissible by the plaintiff to prove the truth of the symptoms complained of to the doctors. The Court in Samuel was not concerned with the exception to the hearsay rule for admissions against interest. Statements made by a plaintiff to doctors may be admissible under that exception when tendered for that purpose by the defendant or other party opposed in interest to the plaintiff; see Cunningham v. Slubowski, 2003 BCSC 1854 at para. 14.
 I do not read the trial judge’s reasons as categorically rejecting the admissibility of clinical notes as a general proposition. Rather he addressed the evidentiary weight of the notes. I think that he went too far in the sentence underlined above when he stated that clinical notes are not made for investigative and litigation purposes. That overlooks the fact that all of the medical doctors who testified, apart from Dr. Dwyer, were retained to provide independent medical opinions for the purposes of litigation. Complaints of symptoms by a plaintiff to doctors must be supported by confirmation of those symptoms by the plaintiff’s testimony in court to provide an evidentiary foundation for the medical opinions; see, for example, Lenoard v. B.C. Hydro & Power Authority (1964), 50 W.W.R. 546 (B.C.S.C.). Nonetheless, the accuracy of the doctors’ record of complaints is important to their opinions, and to that extent accuracy has obvious litigation implications.
 While clinical records may be admissible as a record of admissions against interest in appropriate circumstances, in the instant case the defendant seeks to rely on the clinical notes to support the inference that the plaintiff did not complain to the doctor of the symptoms he alleges because the notes do not contain any reference to those symptoms. In effect, the defendant is contending for an admission by omission. In my view, that overstretches the limits of the admissions exception in the circumstances here. The notes standing alone are of little if any weight for the purpose intended by the defendant and I think that the trial judge adopted the proper course in limiting their use to refreshing the memory of the doctors during their testimony.
 Viewing the trial judge’s reasons as a whole on this aspect of the case, I am satisfied that he did not reject entirely the admissibility of the clinical notes and he treated their significance as a matter of weight in the context of the doctors’ testimony. For example, the trial judge observed that Dr. Dwyer’s notes supported the plaintiff’s complaint of back pain within four days of the accident. The judge advised counsel for the defendant that she could renew her application to admit the notes later and counsel did not take up that opportunity. I think that any evidentiary value attached to the notes was merged in the testimony of the doctors and there was no prejudice to the defendant arising from their formal inadmissibility as admissions against interest.