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Tag: prior inconsistent statements

Documented "Prior Inconsistent Statements" Need To Be Listed Under the New Rules of Court

Written by admin on . Posted in BCSC Civil Rule 7, Civil Procedure, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with document listing obligations under the new Rules of Court.
In last week’s case (Tran v. Kim Le Holdings Ltd.) the Plaintiff sued for damages as a result of personal injuries.  In the course of trial the Defendant called a witness who gave evidence as to the circumstances of the Plaintiff’s injury which were not favourable to the Plaintiff’s case.  The same witness had provided the Plaintiff’s lawyer a statement years before the trial with a different version of events.  The Plaintiff failed to disclose the existence of this document in her list of documents.  The Plaintiff argued that the new Rules of Court don’t require such statements to be listed as they only go to credibility which is a collateral matter.
Mr. Justice Harris disagreed finding that statements containing prior witness inconsistencies can go beyond the issue of credibility and therefore need to be listed.  The Court provided the following reasons:

[13] Counsel submits, first, that a prior inconsistent statement is not a document that could be used to prove or disprove a material fact. It is a document relevant only to credibility. Therefore, it is not required to be listed. Secondly, counsel submits that until the contradictory evidence was given by the witness, counsel had no intention of using the document at trial. The use of the document has only become necessary because of the surprise in the evidence that was given.

[14] I turn to deal with this point. I must say that I am sceptical that the plaintiff’s argument is correct. It is common ground that the document here is covered by litigation privilege, which necessarily ties it into relevant issues in the litigation. Rule 7?1(6) governs the listing of privileged documents. It is not obvious to me from the wording of the rule that the scope of the obligation set out in Rule 7?1(6) is qualified or limited by Rule 7?1(1).

[15] More importantly, however, prior inconsistent statements can be used, in my view, to prove or disprove material facts. Depending on how a witness responds to the statement when put to the witness, the effect of the use of the statement may well go beyond merely affecting credibility. The witness may adopt the content of the statement insofar as it relates to material facts; in that sense, at least, statements can facilitate the proof of material facts. Statements can facilitate the proof of material facts even if the witness does not adopt them, because findings on material facts may be affected by findings on credibility. But if a witness does adopt a prior inconsistent statement and accept the truth of it, that statement may be used as proof of the truth of its contents, and thereby be used to prove or disprove material facts.

[16] A fine parsing of the obligation to list documents is, in my view, contrary to the policy of disclosure which is exemplified by the Stone decision in the Court of Appeal.

Mr. Justice Harris agreed that while the document should have been listed, it could be used in cross examination as the failure to list was done in good faith and further there was no real prejudice to the Defendant.  In doing so the  Court applied the following factors in exercising its discretion:

[19] … What is clear, however, from these cases is that my discretion has to be exercised on the basis of the following principles:

(a)      whether there is prejudice to the party being cross-examined ?? in this case, of course, it is a witness who is being cross-examined, but the relevant prejudice is to the defendants;

(b)      whether a reasonable explanation of the party’s failure to disclose has been provided;

(c)      whether excluding the document would prevent the determination of the issue on its merits; and

(d)      whether, in the circumstances of the case, the ends of justice require the documents to be admitted.

[24] It is evident that there is a policy against insulating a witness from cross-examination on prior inconsistent statements, because to do so would undermine the search for truth. It is also evident that requiring listing can be seen in some respects as being inconsistent with the purpose of litigation privilege. Both of these points were accepted in the Cahoon decision, in the context of a discussion of the limitation, or explanation, of the scope of the Stone decision…

[33] I observe further, with respect to prejudice, that the defendants could readily have determined whether or not the witness had given a statement. The fact of the existence of the statement was within the knowledge of the defendants. It is not a situation quite like Stone where there would simply be an assumption by counsel that a pain journal had likely been kept and that the fact of the existence of the document could not be verified without the document having been listed. In my view, this mitigates the prejudice, to some degree, that is associated with the use of the document.

[34] Weighing and balancing these conflicting principles, I have reached the conclusion that, in the interests of justice, counsel ought to be permitted to use the document for the purpose of cross-examination.

$35,000 Non-Pecuniary Damages for Moderate Soft Tissue Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgment were released today by the BC Supreme Court awarding just over $40,000 in total damages as a result of injuries and loss sustained in a 2006 Richmond, BC Car Crash.
In today’s case (Lo v. Chow) the Plaintiff was injured when his vehicle was struck by the Defendants.  Liability (fault) was admitted by the Defendant leaving the court to decide quantum of damages (the value of the plaintiff’s losses and injuries).
In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $35,000 Mr. Justice Sewell of the BC Supreme Court highlighted the following findings:

[19] As I have already indicated many of Mr. Lo’s symptoms resolved within a relatively short period after the accident.  His on-going complaints relate mainly to his lower back and are aggravated by heavy exertion at work.  Mr. Lo did not give any evidence about curtailment of recreational activity which he has suffered as a result of the accident.

[20] I conclude that Mr. Lo suffered a mild to moderate soft-tissue injury as a result of the accident.  On the evidence before me, and in particular given the duration of his symptoms, I conclude that he will continue to be symptomatic for the foreseeable future.  At the same time, the intensity of his symptoms is not severe and they do not appear to be in any way debilitating.  My impression of Mr. Lo is that he has coped well with his pain.  Nevertheless, he has continued to experience pain for over 3 years and, as I indicated above, that pain is likely to continue indefinitely.  In all the circumstances I award Mr. Lo non-pecuniary damages for pain and suffering of $35,000.00.

In addition to the discussion addressing damages for pain and suffering this case is worth reviewing for some of the ways ICBC defence lawyers use entries contained in clinical records to try and impeach a Plaintiff at trial.  This type of impeachment with ‘prior inconsistent statements‘ is a common method used in personal injury claims.

In this case the defence lawyer argued that the Plaintiff’s evidence was inconsistent with statements recorded in certain documents.   Mr. Justice Sewell put little weight in this argument and in rejecting it noted the following:

[13] In his submissions counsel for the defendant submitted that Mr. Lo’s credibility was in issue and that I should be very sceptical about the evidence which he gave as to his condition.  Having observed Mr. Lo in the witness box and taking into consideration the whole of the evidence I find that Mr. Lo was a credible witness and that I should accept his evidence as credible.  He did not seem to overstate his symptoms and gave forthright answers to questions even when the answers did not advance his case.

[14] Defence counsel’s criticisms of Mr. Lo’s credibility are centered on two particular documents.  The first is a document described as a Discharge Report prepared by Mr. Troy Chen, a personal trainer who supervised an exercise program to Mr. Lo between August 29, 2006 and October 12, 2006.  Counsel submitted that Mr. Lo’s evidence that he continues to have difficulty and pain when called upon to do heavy work cannot be reconciled with some of the comments attributed to him in the Discharge Report.  In particular, counsel points to the following passage on page 2 of the Discharge Report dealing with client activities:

“Mr. Lo indicated the following:

Working fulltime as a packager for BEPC Apparel.  No time for any sporting or recreational activities.  On October 12, 2006, Mr. Lo indicated that he was now able to perform all job-related duties without assistance.”

[15] Counsel submits that this statement is inconsistent with Mr. Lo’s evidence that while he was employed at BEPC he required assistance in lifting heavy objects and packages.  He therefore invited me to make adverse findings of credibility against Mr. Lo.

[16] I do not think that Mr. Lo’s credibility is in any serious way damaged by the contents of the Discharge Report.  Firstly, Mr. Chen testified that he has absolutely no recollection of the matters recorded in the Report.  Accordingly, the only evidence that I have from him is in the form of past recollection recorded in the Discharge Report.  Mr. Lo speaks primarily in the Cantonese dialect of the Chinese language.  Mr. Chen speaks English and Mandarin.  He testified that he would have spoken to Mr. Lo through an interpreter but was unable to identify who that interpreter was or the circumstances in which he made notes of Mr. Lo’s comments.  I also note that in the portion of the Discharge Report immediately below client activities Mr. Chen noted that Mr. Lo continued to suffer constant discomfort in his lower back and that exertion tended to elicit pain which may linger for several days.  Mr. Lo also reported to Mr. Chen that lifting heavy objects elicited pain in his right pectoral area.

[17] The other document which counsel submitted brings Mr. Lo’s credibility into question is a WorkSafe B.C. claim filed by Mr. Lo in June 2007 with respect to a work-related injury.  On June 8, 2007 Mr. Lo lifted 30 boxes weighing at least 60 pounds each.  Mr. Lo at that time reported back pain and made a claim for wage loss compensation to WorkSafe B.C.  In the course of investigating Mr. Lo’s claim WorkSafe B.C. required various forms to be completed.  In one of the forms which was completed on behalf of Mr. Lo, in English, he reported that there was no previous condition prior to the injury.  I, again, do not find that the contents of these documents cause me to form an unfavourable impression about Mr. Lo’s credibility.  The documents, as I indicated above, are prepared in the English language and were prepared on Mr. Lo’s behalf by an employee of BEPC.  Mr. Lo testified that the contents of the document were not read to him and he understood that they were an application for benefits.  In all of the circumstances, I do not think that Mr. Lo intended to mislead or make false statements in his application to WorkSafe B.C., nor do I think that the contents of these documents are necessarily inconsistent with Mr. Lo’s symptoms as he reported them to his physicians and testified to at trial.