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CIVIL EVIDENCE - Opinion evidence - Expert evidence - Lay persons

Tuesday, February 11, 2020 @ 8:49 AM  


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Appeal by the plaintiff from summary judgment dismissing her action. The appellant sued the defendant automaker alleging that she was involved in a motor vehicle accident due to defective brakes in her vehicle. She claimed the respondent was liable for damages to her vehicle and for her personal injuries resulting from the collision. At the summary trial hearing, the respondent presented an affidavit of an employee who had inspected the vehicle brakes after the collision. His affidavit included details of this inspection and his conclusion that the brakes appeared to be working properly. The employee was not tendered as an expert witness and was not qualified by the judge as an expert witness. The respondent argued the employee was a fact witness, not an expert, and that there was no need for him to be qualified in this circumstance. In dismissing the action, the judge relied upon the employee’s conclusions and opinions regarding his inspection of the vehicle’s brakes and his interpretation of the data retrieved from the vehicle’s event data recorder. The appellant argued the judge erred by admitting and relying upon the affidavit evidence which was inadmissible.

HELD: Appeal allowed. The admission of and reliance upon the employee’s evidence was an error. Given the technical and specialized nature and scope of the affidavit evidence in this circumstance, it should have been characterized and treated as expert opinion evidence. There was no assessment, however, to determine whether the employee’s proposed evidence met the test for admissibility as expert opinion evidence. The employee was thus not entitled to give expert opinion evidence, and his evidence was not admissible on that basis. The evidence was also not admissible as lay opinion evidence or fact evidence. The employee’s opinions and conclusions about the vehicle’s braking mechanisms, the functionality of the brakes’ component parts, and the data recovered from the vehicle’s event data recorder went well beyond those which could be formulated based on ordinary day-to-day experience of life or common ordinary knowledge and experience. The employee’s evidence was a matter of opinion and expertise. The respondent’s characterization of him as a very knowledgeable fact witness did not change this and did not create a pathway for the admission of his evidence.

Compton v. Toyota Canada Inc., [2019] N.J. No. 394, Newfoundland and Labrador Court of Appeal, C.W. White, F.P. O'Brien and W.H. Goodridge JJ.A., December 23, 2019. Digest No. TLD-February102020006