The focus of this article is on the importance of collateral witnesses and this is a very interesting case to read.

The Defendant says “the plaintiff has lied about her ongoing pain, for which there is no medical explanation.” 

It is often a defence tactic we are all aware of.  To attack the credibility and reliability of the Plaintiff to create risk with the goal of reducing the value of a claim.  How is this addressed when you are at trial?

We review Ledwon v. Baines, 2019 BCSC 450 (CanLii) in which 2 MVA’s were involved.  One in June of 2012 and one in July of 2013.  In the first collision, the Plaintiff had her right foot injured when the Defendant vehicle rolled over it as she exited the vehicle and bent down to pick up her belongings from the car.  The Plaintiff was left dependent on an electric scooter as a result of this injury.

The Defendant’s position was that the Plaintiff has lied about her pain and the second accident did not occur at all.

The Plaintiff is 51 years of age.  She was a former lawyer whose licence was suspended due to mental illness and was receiving BC Government disability benefits from a car accident in 1982. 

While the negligence of the Defendant was not disputed in relation to the 1^st MVA, an argument of contributory negligence was raised. 

Before we begin, the 2nd accident is not relevant in this article as the Plaintiff did not prove the accident occurred.

Some facts regarding the 1^st MVA which is really the subject matter of this case:

• The Plaintiff was a back seat passenger
• Defendant driver and front seat passenger and the Plaintiff had all gone out for dinner
• Upon return to her home, the vehicle came to a stop and the Plaintiff asked if it was ok to exit the vehicle
• The Defendant driver and front seat passenger said Yes and unlocked the doors (due to child safety lock on)
• The Plaintiff exited the vehicle
• She turned and bent over to pick up her bag from the car
• The car rolled forward unexpectedly and rolled over her right foot

On the issue of apportionment, the Court stated:

 I find that the defendants were clearly in a better position than the plaintiff to determine when it was safe to get out of the vehicle. Ms. Baines specifically told the plaintiff that it was safe for her to get out and either she or Mr. Fuller made it physically possible by unlocking her door. The defendants’ argument is essentially that the plaintiff was negligent in believing their own representations. I find the plaintiff reasonably relied on those assurances and find the defendants are fully liable for the First Accident.

In this case, 3 friends were called to testify.  They each testified that the Plaintiff had ongoing mobility challenges, complaints of pain including personality changes.

One witness testified that the Plaintiff walks inside her home by holding onto things.

The testimony included comments that the Plaintiff uses a motorized scooter 90% of the time when she is outside her home.

Another witness testified that she had to push a wheelchair to assist the Plaintiff while they were shopping.

There was no evidence that the Plaintiff required mobility aids prior to the accident.

Based on the evidence presented at trial and the evidence of her friends and treating family physician, the Court did not accept the defence submissions that the Plaintiff lied about her pain.

Harp Nirwan from Nirwan Law shares some insight on collateral witnesses:

•  Collateral witnesses were crucial in this decision.  What are the criteria you look at in selectiving your collateral witnesses?

Harp Nirwan:  I look for someone who knows the Plaintiff very well and if I am looking to establish causation which I was in this case, I want to show that the person knew the Plaintiff before the accident and can talk about their pain and functional capacity and knew them after the accident and can talk about the comparison afterwards.

• In terms of preparing collateral witnesses for trial, what feedback can you offer on that topic?

Harp Nirwan: 

1. Meet them early
2. Rehearse exactly what is going to happen in the Courtroom; and
3. Try to prepare them for cross-examination by highlighting the questions that could be asked.

A special thank you to Harp Nirwan from Nirwan Law in sharing his expertise and mentorship.

Please also visit related topics:

1. Credibility and Reliability of the Plaintiff’s evidence.
2. Liability trial – Credibility and Reliability of a witness.
3. Compelling Evidence:  Collateral Witnesses.

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