This post pertains to discrepancy of evidence. Specifically, the Courts have noted that discrepancies in evidence is not necessarily as significant as counsel may think. Moreso, discrepancies in the evidence does not always impact the credibility of the Plaintiff.
While it is important to highlight any inconsistencies or contradictions that may exist in the evidence, it is equally important to note the comments being made by the Court as it pertains to the discrepancy of evidence. The leading authority on this subject is from 1983 referenced as Diack v. Bardsley (1983), 46 B.C.L.R. 240 (S.C.), aff’d (1984), 31 C.C.L.T. 308 (B.C.C.A.).
Diack has been referenced several times, and most recently in Chaube v. Neja, 2017 BCSC 1415 where the Honourable Mr. Justice N. Smith makes a comment worth sharing as it pertains to the discrepancy of evidence:
“Counsel are always eager to point out discrepancies between a party’s evidence at trial and evidence at discovery, but those discrepancies are rarely as significant as counsel seem to think they are. They are usually the product of the normal frailties of human memory, in which details of past events are forgotten or remembered as those events are recounted on different occasions. They often relate to matters of marginal relevance or are matters of semantics. In Diack v. Bardsley (1983), 46 B.C.L.R. 240 (S.C.), aff’d (1984), 31 C.C.L.T. 308 (B.C.C.A.), McEachern C.J.S.C., as he then was, said at 247:
… I wish to say that I place absolutely no reliance upon the minor variations between the defendant’s discovery and his evidence. Lawyers tend to pounce upon these semantical differences but their usefulness is limited because witnesses seldom speak with much precision at discovery, and they are understandably surprised when they find lawyers placing so much stress on precise words spoken on previous occasions.”
The Diack decision was also referenced in Stull v. Cunningham, 2013 BCSC 1140 (CanLii). The Honourable Mr. Justice B.D. MacKenzie states the following:
“As in every case dealing with soft tissue injuries, the credibility of the plaintiff is of paramount importance.
In this case, I have carefully considered the testimony of Mr. Stull, observed him in the witness box and compared his testimony at trial with answers he gave at his examination for discovery, as well as his statements to the various medical practitioners he has seen over the years.
On this issue, it is helpful to recall the comments of N.H. Smith J. in Carvalho v. Angotti, 2007 BCSC 1760 (CanLII). At para. 15 he states:
The attack on the plaintiff’s credibility is based, in part, on various contradictions and inconsistencies within her evidence at trial and between that evidence and her discovery evidence, documents she prepared for other purposes, or statements recorded in clinical records. It is a rare case of this kind where such inconsistencies cannot be found. By the time a personal injury case gets to trial, the plaintiff typically will have provided information to a number of people – including doctors, adjusters and disability insurers – on a number of occasions over a period of years. This provides fertile ground for cross-examination precisely because very few people will have perfect and identical recollection on each of those occasions.”
Interestingly, the Diack decision was referenced in Kirkham v. Richardson, 2014 BCSC (CanLii) to downplay a Plaintiff’s inconsistent statements that were noted on social media.
“The defendant submits that Ms. Kirkham was impeached on some key points in her evidence. At most, the defendant has identified some minor differences in what Ms. Kirkham said about her condition at various times and in very different circumstances. Some of the alleged inconsistencies arise from statements made by Ms. Kirkham on her website and Twitter feed. In Diack v. Bardsley (1983), CanLII 542 (BCSC), 46 B.C.L.R. 240 (S.C.), at para. 30, aff’d (1984), 31 C.C.L.T. 308 (C.A.), McEachern C.J.S.C. said the “usefulness [of minor variations between a witness’s evidence at trial and on discovery] is limited because witnesses seldom speak with much precision at discovery …”. The same can be said, but with more force, about the precision and fullness with which people speak on social media, particularly on Twitter where messages may not exceed 140 characters in length. Ms. Kirkham explained that she often tweeted positive messages as this was one way of trying to keep up good relations with her sponsors. Also, the fact that she did so is consistent with Ms. Kirkham’s natural tendencies. She is a positive individual who was determined to recover from her injuries, and in these circumstances it is not at all surprising that she would have taken to social media to report, with enthusiasm, a particularly good day.”
There are several other cases that can be reviewed on this subject.
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