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CIVIL EVIDENCE - Admissibility - Witnesses - Credibility - Prior inconsistent statements

Tuesday, July 06, 2021 @ 5:42 AM  


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Appeal by the plaintiff from trial judgment finding her solely liable for a motor vehicle accident. The respondent rear-ended the appellant’s vehicle. The respondent argued that the accident was caused solely by the appellant braking and coming to a near stop for no reason as she entered the intersection. The trial judge concluded there was nothing about the configuration of the intersection, the driving conditions on that day, or the circumstances that immediately preceded the accident that either explained or justified the appellant’s braking without any warning. The dash‑cam showed her briefly decelerate and then apply her brakes about two car lengths before the intersection even though the light was green. She did not come to a full stop, but she came close. The appellant argued the trial judge made errors in his treatment of her explanations she purportedly made, at different times, about the circumstances of the accident. The appellant initially said she was stopped at a red light. After she viewed the dash-cam video, she claimed she stopped at a light she thought was red. She allegedly told her husband that the respondent told her at the scene that she dropped an item in her car prior the accident. 

HELD: Appeal dismissed. What the appellant might have said earlier to ICBC or to the independent medical experts had no direct relevance to the trial judge’s determination of how the accident occurred. What was germane to the trial judge’s conclusions was the evidence given by the appellant at trial and the inconsistency of that evidence with what was apparent from the dash‑cam video. It was open to the trial judge to observe the inconsistency between these various accounts contained in the expert medical reports filed by the appellant in her case without the respondent first proving that the appellant made the statements that were attributed to her. Those earlier statements were not used to challenge the appellant’s in‑court testimony. Her in‑court testimony was undermined by the dash‑cam video. The rule in Browne v. Dunn had no application in this case. The appellant was not ambushed because she was not confronted with the statements she had earlier made to the doctors. Those statements were contained in the reports she chose to file as exhibits in her case. She chose not to address any perceived inaccuracies in what the doctors reported. There was nothing in the judge’s analysis that indicated he did not properly consider what the appellant told her husband. Rather, he was unpersuaded by this consideration in light of the evidence as a whole. Based on the findings made by the trial judge, there was no basis for the judge to properly consider, or give weight to, the fact that a third car was able to avoid the accident. The factual findings made by the trial judge were well developed and well supported.

Chauhan v. Welock, [2021] B.C.J. No. 1199, British Columbia Court of Appeal, M.V. Newbury, P. Abrioux and P.G. Voith JJ.A., June 4, 2021. Digest No. TLD-July52021003