Liability Trial – Credibility and Reliability of a Witness

This post will highlight the subject of credibility and reliability of a witness.

Relevant Factors discussed in this Post:

  • The credibility of the witness
  • The accuracy and reliability in the witness’s recollection of the evidence
  • Is there objective evidence to support the witness statements
  • Collision Analysis, accident reconstruction, light sequencing evidence, weather reports
  • Agreed Statement of Facts is helpful
  • Identify conflicting facts, inconsistent statements and/or discrepancy in the evidence
  • Review discovery evidence with your client prior to trial
  • Witness’s upset, shock and injury at the time of the collision
  • Witness’s familiarity of the scene of the accident

This recent decision in Elima v. Dhaliwal, 2017 BCSC 1922 is a liability trial, which often comes down to the credibility of the parties, the witnesses and any objective evidence that may exist to add weight to the statements of all parties, such as accident reconstruction or collision analysis reports.  In this specific case, neither party rendered or produced any evidence from a collision analyst and there was no light sequencing evidence, which potentially may have been helpful to the Court. The severity of the accident was also unknown and the Court did not want to speculate on this issue.

The decision on liability rendered in this case was 50 / 50.  Both parties in this case were Plaintiffs in their own actions, and Defendants in the other.

What was helpful is that there was an agreed statement of facts that the court referenced.  The evidence between the parties, of course, conflicted with each other and the Court had to carefully assess this evidence to assist with the Court’s assessment of the issue of liability.

In assessing credibility and reliability, the Court referenced R. v. Morrissey (1995), 22 O.R. (3d) 514 (ONCA) Doherty J.A.:

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness’s sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness’s testimony. The accuracy of a witness’s testimony involves considerations of the witness’s ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness’s veracity, one speaks of the witness’s credibility. When one is concerned with the accuracy of a witness’s testimony, one speaks of the reliability of that testimony.

On the issue of reliability, the Court referenced Vapheas v. Madden, 2014 BCSC 138 Madam Justice Adair observed:

In cases of this kind, witnesses (including parties) do their best, in response to questions from counsel, to give detailed evidence about such things as positions and movement of vehicles, the colour of traffic lights, distances and the length of time of events.  However, witnesses are attempting to describe events that happened suddenly, and over what is often only a few seconds.  Witnesses are not waiting for an accident to happen, ready to capture and recall every relevant detail years later in a trial.  There is, therefore, a great deal of room for error and reconstruction, even though a witness is doing his or her best to recall and describe accurately what happened.

Factors impacting reliability of a witness’s recollection include, but not limited to:

  • Upset;
  • Shock; and
  • Injured state of the witness.

Discrepancies in evidence that may or may not be relevant is a factor that suggests the witness’s recollection is not 100% clear.  This is a factor that the Courts will also consider when assessing reliability of a witness’s recollection of the facts of the incident.

Also of note, the discovery evidence is summarized by the Court and where the evidence provided at discovery differs from the evidence given at trial, this may impact the credibility and reliability of the witness’s testimony.  An example in this case identified inconsistent statements by the Plaintiff, who at trial, was asked to draw a diagram of the scene of the collision and placement of vehicles.  The Plaintiff did so, but this diagram differed from the drawing provided at discovery.  The Plaintiff indicated that the drawing at discovery was inaccurate.  This is where evidence from a collision analyst may have been helpful.  Having said that, the Court did state that the evidence of the Plaintiff was accepted, but marked that the inconsistent evidence suggested that the Plaintiff’s recollection of the facts was certainly hazed.

Reviewing the discovery evidence prior to attending trial to highlight the evidence provided by the client seems to be a very useful exercise, and most importantly, reviewing this evidence with the Plaintiff prior to trial would also be helpful

You will also find that the Courts often comment on the parties familiarity of the scene of the collision, which may or may not add weight to the evidence in terms of credibility and reliability of the testimony, over a party who had no familiarity of the scene (especially where inconsistent evidence is being adduced).

I will append the legal framework of this case in its entirety:

The Legal Framework

  1. a)    The First Step

[77]         In Miller v. Dent, 2014 BCCA 234 the Court addressed an appeal on liability in circumstances where the trial judge had concluded that the plaintiff/appellant, who was turning left at an intersection, had not established the defendant’s negligence. Garson J.A., at paras. 12 and 13, commented that the trial judge had begun his analysis with a discussion of s. 174 of the Motor Vehicle Act, RSBC 1996 c. 138 (the “Act”).

[78]         Garson J.A. said:

[14]         At para. 39, the judge summarized Mr. Miller’s evidence and then concluded that Mr. Miller was negligent because he had breached s. 174. The judge did not make any findings of fact about the color of the light at the time Mr. Miller began his left turn before concluding that Mr. Miller was negligent. With respect, this conclusion begs the real question: how could Mr. Miller be negligent and in breach of s. 174 if he had the right of way on the basis that the light was red for Ms. Dent and he was just clearing the intersection?

[15]         The judge did not address this question, rather he said:

Mr. Miller’s evidence was that: (1) a large SUV was facing him, waiting to turn, and there were one or two vehicles behind the SUV; (2) he could not see up the SUV’s lane because the SUV blocked his view; and (3) he commenced his turn even though he could not see behind the SUV. Accordingly, he not only commenced his turn even though he was unable to see behind the SUV, it appears he did so when he was aware there were vehicles behind it. In doing so, he was negligent because he turned without ascertaining whether through-driving vehicles behind the SUV that were lawfully in the intersection might also have to clear the intersection.

[Emphasis added.]

It appears, therefore, that at the first stage of his analysis the judge concluded that Mr. Miller was negligent for turning left in front of an oncoming vehicle, despite not having made any finding of fact as to the color of the traffic light.

[16]         In my view, the s. 174 analysis ought not to have been the first step in the liability analysis. The first step in the analysis ought to have been a consideration of the evidence of the colour of the light. If the light was green, then Ms. Dent was obviously the dominant driver with the right-of-way. If the light was red, then as the judge said, the obligation on her “is almost too obvious to mention”: para. 37. As Ms. Dent did not testify she entered on a yellow light, I cannot see that s. 174 of the Motor Vehicle Act has any application, at least not at this first stage of the analysis.

[79]         I have found that the traffic light was amber, albeit late amber, when the Ford Truck reached the stop line before the Intersection.

  1. b)    Section 174 and Section 128 of the Act

[80]         Section 174 of the Act, which sets out the obligations of a driver who intends to turn left at an intersection, provides:

174  When a vehicle is in an intersection and its driver intends to turn left, the driver must yield the right of way to traffic approaching from the opposite direction that is in the intersection or so close as to constitute an immediate hazard, but having yielded and given a signal as required by sections 171 and 172, the driver may turn the vehicle to the left, and traffic approaching the intersection from the opposite direction must yield the right of way to the vehicle making the left turn.

[81]         In Nerval v. Khehra, 2012 BCCA 436 Harris J.A. described the various obligations and burdens of proof that arise under s. 174 of the Act:

[35]         The effect of s. 174 is to cast the burden of proving the absence of an immediate hazard at the moment the left turn begins onto the left turning driver.  This result flows inevitably from the wording of the section itself, given the nature of the absolute obligation the section creates.  If a left turning driver, in the face of this statutory obligation, asserts that he or she started to turn left when it was safe to do so, then the burden of proving that fact rests with them.

[36]         The trial judge did not err in imposing this burden on Ms. Nerval.  The first aspect of the burden is to demonstrate that when she began her turn there was no immediate hazard.  Having failed to do so, the trial judge was entitled to conclude that Ms. Khehra was an immediate hazard and was the dominant driver.

[37]         The second aspect of the burden relates to proving that despite being the dominant driver, Ms. Khehra nonetheless was negligent and at fault for causing or contributing to the accident.  Here, although Ms. Khehra had the right of way, she could exercise that right only in a safe manner.  The trial judge correctly relied on the statement of principle from para. 18 of Pacheco, quoted above, in assessing the evidence and reaching his conclusions.

[38]         Whether a through driver is dominant turns on whether the driver’s vehicle is an immediate hazard at the material time, not why it is an immediate hazard.  Dominance identifies who must yield the right of way.  One consequence of this analysis is that negligence on the part of a through driver does not disqualify that driver as the dominant driver.  The through driver remains dominant, even though their conduct may be negligent.  Indeed, the through driver’s fault may be greater than the servient driver’s fault.  In other words, a through driver may be an immediate hazard even though that driver is speeding and given her speed would have to take sudden action to avoid the threat of a collision if the left turning driver did not yield the right of way.  The correct analysis is to recognize that the through driver is breaching his or her common law and perhaps statutory obligations and to address the issue as one of apportioning fault, not to reclassify the through driver as servient based on the degree to which the through driver is in breach of her obligations.

[82]         The obligations of the left turning driver are, however, not absolute. Section 128 of the Act is relevant and provides:

128  (1) When a yellow light alone is exhibited at an intersection by a traffic control signal, following the exhibition of a green light,

(a) the driver of a vehicle approaching the intersection and facing the yellow light must cause it to stop before entering the marked crosswalk on the near side of the intersection, or if there is no marked crosswalk, before entering the intersection, unless the stop cannot be made in safety,

(2)  When a yellow light alone is exhibited at a place other than an intersection by a traffic control signal,

(a) the driver of a vehicle approaching the signal must cause it to stop before entering the nearest marked crosswalk in the vicinity of the signal, or if there is no marked crosswalk, before reaching the signal, unless the stop cannot be made in safety, and

[83]         The interrelationship between ss. 174 and 128 has been addressed in several recent decisions of this court: Vapheas, Lee v. Tse, 2013 BCSC 1740 at paras. 46-57, Cornish v. Khunkhun, 2015 BCSC 52 and Sharma v. Chan, 2017 BCSC 912 at paras. 48-52. In Cornish, Skolrood J. provided the following summary:

[121]     In Lee v. Tse, 2013 BCSC 1740, Madam Justice Fleming summarized the effect of these sections as follows at para. 48:

In summary then, the MVA requires a left turning driver to yield to oncoming traffic that is in the intersection or so close as to constitute an “immediate hazard.” A driver facing a yellow light must stop before entering an intersection unless the stop cannot be made in safety. A driver must not enter an intersection on a red light.

[122]     However, Madam Justice Fleming reviewed a number of authorities dealing with the obligations of a left turning vehicle and stated that the duties in s. 174 are not absolute, and are subject to what is reasonable in the circumstances (at para. 49):

The duty on a left turning driver pursuant to section 174 of the MVA is not absolute. It is well established that left turning drivers are entitled to rely on the assumption that other drivers will obey the rules of the road, absent any reasonable indication to the contrary. In particular, a left turning driver is not required to wait until he or she sees that all approaching drivers have stopped: …

[123]     Her review of the authorities also led her to conclude that “[t]he weight of the authorities dealing with left turning drivers who commence their turn on a stale yellow or red light is to find the straight through driver entirely at fault” (para. 55). See for example: Kokkinis v. Hall (1996), 71 B.C.A.C. 97, 19 B.C.L.R. (3d) 273 and Henry v. Bennett, 2011 BCSC 1254.

[124]     An exception to that line of authorities exists when it can be shown that both drivers breached their statutory duties and that both caused or contributed to the accident: see for example Ziani v. Thede, 2011 BCSC 895 [Ziani] and Shirley v. Regier (1997), 70 A.C.W.S. (3d) 826, [1997] B.C.J. No. 1035 [Shirley].

Analysis and Conclusions

[84]         The driver making a left-hand turn, here Mr. Elima, bears the onus of proving the absence of an immediate hazard at the moment before he or she begins to make that turn: Nerval at para. 35 and Raie v. Thorpe, [1963] B.C.J. No. 14 (C.A.) at para. 25. The admissions of Mr. Elima that I referred to earlier, at para. 32 of these reasons for judgment, confirm that Mr. Elima cannot satisfy this onus. Indeed, Mr. Elima accepted that the approaching Ford Truck made it unsafe for him to turn into the Intersection: Nerval at para. 36.

[85]         The driver who approaches or faces a yellow light bears the onus of establishing, under s. 178 of the Act, that he or she was unable to stop safely: Vapheas at para. 34 and Ziani v. Thede, 2011 BCSC 895 at para. 26.

[86]         Mr. Dhaliwal could no longer stop safely at the point where the Ford Truck entered the Intersection. This is quite different, however, from the question of whether Mr. Dhaliwal would have been able to stop safely after the traffic lights had first turned yellow. Almost of necessity this has to be so. The traffic lights had, I have concluded, been yellow for some time as Mr. Dhaliwal approached the Intersection.

[87]         Accordingly, as Mr. Elima turned into the Intersection there was an immediate hazard and Mr. Dhaliwal was the dominant driver. Mr. Elima failed, I am satisfied, to keep an adequate lookout. He chose instead to follow the Gallacher SUV into the Intersection without being able to see the Ford Truck as he began that turn. Still further, Mr. Elima misjudged the risks associated with his doing so.

[88]         Though Mr. Dhaliwal was the dominant driver, and had the right-of-way, he could only exercise that right in a safe manner. He failed to do so.

[89]         He approached a busy intersection in circumstances where he ought to have seen at least the Gallacher SUV waiting to turn left. He acted unsafely, or negligently, in several respects. First, he approached the Intersection without having tried to stop when the traffic lights first turned yellow. As Ms. Gallacher testified it seemed clear that the driver of the Ford Truck had no intention of stopping. Second, Mr. Dhaliwal chose to accelerate through the Intersection with the result that he entered the Intersection at an excessive rate of speed of approximately 80 km/h.

[90]         I am satisfied that both Mr. Elima and Mr. Dhaliwal bear some fault for the Accident. I am further satisfied, in all of the circumstances, that liability for the Accident should be apportioned equally between them.

[91]         The parties did not address the issue of costs. Absent there being circumstances that I am unaware of, I consider that each party should be responsible for their own costs of this trial. If the parties wish to make further submissions, in relation to the issue of costs, they are to contact the Registry to fix a time to do so.


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