Evidence – Collateral Witnesses

In reading multiple personal injury cases, we note the focus must be on the change or impact that an injury has on a claimant when presenting a case.

This article will identify the importance of collateral witnesses and offer some guidance in preparing witnesses for trial, and specifically the type of evidence that may be sought from collateral witnesses that is helpful to the Court.

We will review a recent decision in which profound changes were noted in the claimant after being involved in a motor vehicle crash.  Although there was a liability dispute, the Court placed 100% fault against the Defendant.  Mitigation arguments were also raised but the Court stated “ I have concluded that the defendants have not met the threshold for reducing an award set out in Chiu.”

The car crash was quite significant causing the vehicle in which the Claimant was riding in to leave the highway, and down an embankment, and luckily stopped by a tree which it hit dead on.

The Plaintiff suffered multiple injuries including psychological injury and as noted those injuries had a profound impact on him.  The changes were identified by multiple collateral witnesses called on behalf of the Plaintiff. 

We have written several articles on the importance of collateral witnesses and we enumerate those articles here for your reference and review:

  1. Witnesses at trial – preparation.
  2. Credibility – collateral witnesses.
  3. Compelling evidence: collateral witnesses.
  4. Liability trial – credibility and reliability of a witness.
  5. Credibility and reliability of the Plaintiff’s evidence.
  6. SCC Judgment rendered in Saadati v. Moorehead, 2017 SCC 28 – Psychological Injury

Collateral witness testimony has become very important especially during a time where limits exist as to expert evidence (1 expert per claim) in multiple Provinces.  However, there are no limits on the amount of collateral witnesses that may be called. 

We saw the value of collateral witness testimony in the SCC decision Saadati which is linked above.  That case was run primarily on collateral witnesses and without an expert opinion that offered a diagnosis.  If you have not read that SCC decision, please do so.  It is a very important decision that the entire legal team should be aware of. 

It is beneficial to have numerous collateral witnesses from different people in the claimant’s life, both personal and professional.  These testimonies certainly assist the court with it’s mission in identifying findings of fact.  In the subject case, the following statements were extracted from the various witness testimonies and enumerated in the published decision regarding the change or impact the injuries had on the claimant post collision. 

We will offer some useful advice from one of our prior articles on Case Law Corner entitled  “Considerations for concussion/mild traumatic brain injury cases”:

In speaking with counsel for Boudreau, Dianna Robertson, of D. R. Robertson Injury Law, who works with seriously injured plaintiffs, stated, “This was a particularly difficult case; an important step in preparing these cases for trial is to focus on the impact of the injury on that particular person’s life, not the injury. It is important to particularize the impact on that person’s functional impairment, including the losses and limitations for them and their family.”

There is therefore a specific function or goal in calling collateral witnesses and the following statements serve in telling a story about the difficulties the Claimant experienced after the car crash:

  1. Change to “physical abilities” and “emotional state” following the accident.
  2. Changes in the plaintiff’s personality.
  3. How the plaintiff sounded post collision “the plaintiff sounded down when he spoke to him.”
  4. “noticed a drastic change in the plaintiff both physically and personality wise.”
  5. The plaintiff appeared to have lost his confidence.
  6. The Plaintiff was no longer happy go lucky and outgoing.
  7. The plaintiff hardly left his room and did not socialize.
  8. The plaintiff appeared unstable on his feet and didn’t seem to have any balance. 
  9. The Plaintiff lost his balance, fell to the ground and lost consciousness.
  10. He had to help the plaintiff, including cleaning the plaintiff’s room and driving him to medical appointments, as the plaintiff wasn’t capable of doing those things.
  11. the plaintiff did not appear to be doing well.
  12. The Plaintiff having trouble with getting around as a result of balance issues.
  13. The Plaintiff rarely ate.
  14. The Plaintiff stayed in his room most of the time.
  15. The Plaintiff has required financial assistance since the accident.
  16. The plaintiff seems darker, more depressed, and appears to have a lot less energy. 
  17. The plaintiff sounds different.
  18. The Plaintiff appeared down in the dumps and not as happy as he used to be.
  19. When walking and appearing dizzy when he stands up from sitting on a chair.
  20. The plaintiff became quiet and withdrawn and left early to return to the hotel
  21. Prepares food for the plaintiff because he is not well.

It is equally important to identify for purposes of comparison the state of the claimant prior to the collision.  In other words, seeking testimony from witnesses that know the claimant and are able to identify the claimant’s character, personality and aspects of their life prior to the car crash. This allows the Court to see the differences before and after the crash.

Following are statements that were made by collateral witnesses to describe the claimant prior to the collision. 

  1. Prior to the accident the plaintiff was a very happy go lucky individual.
  2. He had never observed the plaintiff having balance problems prior to the accident.
  3. Testified he has not observed any change in the plaintiff’s personality or physical abilities since 2017.
  4. The plaintiff’s personality as super outgoing, very friendly, and charming.
  5. The plaintiff was fun to hang out with and full of energy. 
  6. The plaintiff went to the gym regularly, played baseball, and surfed.
  7. Carried on doing activities together, including going places in the car, swimming, and walking. The plaintiff’s disposition did not change.
  8. Witness testified that they worked 12 hours per day, 7 days per week, with a few short breaks during the workday.
  9.  Witness testified the job required sustained sitting, and extended periods of pacing and concentration.
  10. Witness observed that the plaintiff did a good job operating the excavator.
  11. Witness testified that the plaintiff was a nice, charming guy, and he never observed any signs of the plaintiff being depressed or anxious.
  12.  The plaintiff was outgoing and chatty. Ms. Vargas testified he was happy but she also observed him being sad.

Damages in this case were awarded as follows:

Non-pecuniary damages – $200,000

Loss of housekeeping capacity $40,000

Loss of past income earning capacity – $120,000

Loss of future income earning capacity – $113,944

Cost of future care – $56,963.92

Special Costs – $1500

Total – $532,407.92

Case Link.