The Law As it Pertains to “critical testimony adduced through leading questions”

In Bye v. Newman, 2017 BCSC 1718 (CanLII) the Plaintiff claims personal injury when his ATV and a friend’s ATV collided, causing the Plaintiff serious injury requiring a through-knee amputation of much of his left leg.

It is an interesting decision in which liability is disputed and both parties have different accounts of what happened.  The Defendant Newman was found liable for the crash, which resulted in a total award to the Plaintiff in the sum of $3,046,255.74.

Time should be taken to review this decision.

My post is only going to deal with one issue that was raised in this case– the issue of “critical testimony adduced through leading questions”.

The law on this topic was analyzed, and as a result of the method in which evidence was adduced from the Defendant Newman, the Court found that no weight could be placed on his testimony.

I will highlight the portion of the decision that discusses this specific issue, but encourage you to view the link of this entire decision.

It is not often you see injuries of “amputation” and certainly, these types of cases tend to be major loss cases.

Discussion of the Issue

I am also hesitant to rely on portions of Mr. Newman’s account because of how his evidence was given at trial. Counsel for Mr. Newman clearly had a picture of what had happened during the critical moments before the accident; he extensively used leading questions to draw out Mr. Newman’s evidence on critical issues of liability. Counsel for Mr. Bye objected to this.

[56]        In R. v. Benji, 2012 BCCA 55 (CanLII), our Court of Appeal considered the weight that can be given to critical testimony adduced through leading questions in direct examination:

[133]      In R. v. Rose (2001), 2001 CanLII 24079 (ON CA), 153 C.C.C. (3d) 225 at para. 9, 53 O.R. (3d) 417 (Ont. C.A.), Charron J.A. (as she then was) made the following observations about leading questions being asked by the party who has called the witness:

[9]        A leading question is one that suggests the answer.  It is trite law that the party who calls a witness is generally not permitted to ask the witness leading questions.  The reason for the rule arises from a concern that the witness, who in many instances favours the party who calls him or her, will readily agree to the suggestions put in the form of a question rather than give his or her own answers to the questions.  Of course, the degree of concern that may arise from the use of leading questions will depend on the particular circumstances, and the rule is applied with some flexibility.  For example, leading questions are routinely asked to elicit a witness’s evidence on preliminary and non-contentious matters.  This practice is adopted for the sake of expediency and generally gives rise to no concern.  Leading questions are also permitted to the extent that they are necessary to direct the witness to a particular matter or field of inquiry.  Apart from these specific examples, the trial judge has a general discretion to allow leading questions whenever it is considered necessary in the interests of justice:  Reference Re R. v. Coffin (1956), 1956 CanLII 94 (SCC), 114 C.C.C. 1 (S.C.C.) at 22.

[57]        Here, Mr. Newman was not led through uncontentious facts or general background information, but asked to agree with his counsel on areas that are central to liability in this case and vigorously disputed between the parties.

[58]        The following exchange is from Mr. Newman’s direct examination:

Q:        And you agree with me that the Violin Lake Road, although it’s private property, is still a recreational area widely used by people?

A:         I do.

Q:        And you’ve seen — you’ve encountered all kinds of all-terrain vehicles and motorcycles on that road?

A:         Correct.

Q:        You’ve also encountered people walking on that road?

A:         Yes.

Q:        You’d often pass, what, three to four people every time you were driving on that road? Sometimes you wouldn’t see any people.

A:         Yeah. I don’t know. On average I guess. There was always three or four people it seemed but sometimes, you’re right, it would be an excess of people.

Q:       Okay.

A:         It would just depend on the weather I guess.

Q:        So when you’re riding on that road, and I specifically refer to the road between the mill pond and Violin Lake Road, you were always on guard watching for people? Is that what you’re telling us?

A:         Correct.

Q:        And you ride your ATV accordingly?

A:         Yes.

[Emphasis added.]

[59]        I would add that much of Mr. Newman’s evidence, whether prompted by counsel or not, was similarly conclusory on what are properly legal questions, not evidentiary ones. When he was testifying on his speed of travel, he gave conclusory statements that he drove “according to the conditions” or at a speed that “suits the environment”. Mr. Newman’s task as a witness is to give evidence, not to make or prompt legal conclusions; I put no weight on these statements.

[60]        Turning to the details of Mr. Newman’s story, they are neither probable on their own, nor do they accord with the location of Mr. Bye’s body following the crash or the expert evidence on the damage to the vehicles and their relative speed.

[61]        Firstly, in my view, Mr. Newman’s account is not probable on its own. He testified that, when he saw Mr. Bye approaching down the middle of the road, he pulled into the ditch, and came to a stop, or a near-stop. While there, he was struck by Mr. Bye, and possibly the dirt bike.  This would require Mr. Bye’s dirt bike to have travelled in a generally northwesterly direction (into the “oncoming” side of the road) to strike the ATV in the ditch on the west side. Mr. Newman did not offer any explanation for why Mr. Bye would drive into him, either through accident or design.

[62]        Mr. Newman gave no reasonable explanation of how or why this would have happened. I find this to be an improbable and unlikely account.

[63]        Additionally, while Mr. Newman testified that he was stopped at the time of the collision, there is evidence that he has not always taken this position. The statements that Mr. DePellegrin and Capt. Gallamore adopted at trial relate the parties’ immediate impressions of their speed at the time of the accident. Mr. DePellegrin described conversations he had with Mr. Newman and Mr. Bye at the scene, writing that both had said they “were going” at the time of the crash. Capt. Gallamore reported on a conversation he had with Mr. Newman as they left the scene in Capt. Gallamore’s truck:

He said he was heading up Violin Lake Road with Tom Whyte, he saw Levon Bye coming at him as he came around the corner, and he turned to the right to get off the road, but Levon Bye struck the front left side of his ATV. He said he was travelling about 20 to 30 kilometers at the time.

In this regard, both statements and Mr. Bye’s testimony agree that the ATV was not stopped when the vehicles collided, calling Mr. Newman’s credibility into question on this point.

[64]        The second major difficulty with Mr. Newman’s account is that it does not accord with the location of the blood stain on the road. Mr. Richards’ opinion was that, following the high-side accident, Mr. Bye’s body would have continued travelling over the ATV, roughly in the direction the dirt bike had been travelling. This accords with common sense; upon colliding with the ATV, Mr. Bye’s body would have significant momentum still carrying it forward. Mr. Richards testified that, because the impact to Mr. Bye’s leg was low on his body, he would have retained most of his momentum. Had the collision occurred in the ditch, as Mr. Newman recounted, Mr. Bye’s body should have continued over the ATV in the general direction he had been travelling and should have landed off the road, or in the ditch.

[65]        Mr. Richards addressed this situation on cross-examination. Mr. Newman’s counsel asked him what he would expect to happen if the ATV was not moving at the time of impact:

A:         … What I’m saying is there’s a relative speed between the vehicles, whether the ATV’s moving or not. Even if the ATV is at a complete stop, you know, Mr. Bye — there — there is relative speed between the vehicles, so if the ATV’s stopped, Mr. Bye’s still coming in at a speed.

Q:        Yes.

A:         When he hits the ATV, yes, some energy is going to be dissipated, he’s got bad fractures, but I would expect him to continue … beyond the ATV.

Q:        I am suggesting … to you that the ATV here is stopped or almost stopped.

A:         Right, but in this case, Mr. Bye is not stopped, so even in that hypothetical where the ATV is stopped, he is not stopped so he is going to still go over the ATV.

His report states that it is difficult to predict the motion of a body after impact, and that this is not an exact science:

It is likely that Mr. Bye collided with the left front corner of the ATV. While it is apparent that there was significant interaction between his left leg and the ATV, any impact forces to his upper body were apparently much less significant. In my experience it is likely that Mr. Bye traveled over, or partially over the ATV, although he would have experienced a change in velocity, and likely some change in direction as a result of the impact … However, tumbling of a person can be chaotic in nature and his final rest position may not be in line with the point of impact.

In spite of that caution, however, there is nothing in the expert evidence to suggest that, on impact, Mr. Bye could have reversed direction. Mr. Richards’ evidence was clear that, although he could not determine precisely where a moving body would come to rest, it would likely travel over, or partially over, the ATV. If the ATV was in the ditch, as Mr. Newman testified, then Mr. Bye’s body would likely have traveled over the ATV, into the brush, or partially over the ATV, coming to a rest in the ditch. This does not accord with the blood stain in the road that I have found marks where Mr. Bye lay after the accident. Indeed, one of the few points of consistency between all of the witnesses was that Mr. Bye’s body came to rest on the road.

[66]        Instead, the blood stain shows that Mr. Bye’s lower leg came to rest on the west side of the road, towards the middle. This would involve a significant deviation from the alleged point of impact that is not consistent with either what is probable or the expert evidence available.

[67]        This is further supported by the extent of the damage to the ATV. Mr. Bye hit the upper structure with significant force, sufficient to cause multiple fractures to his left leg. This conclusion accords with Mr. Richards’ report and the damage to the ATV without corresponding damage to the dirt bike. Mr. Richards affirmed on cross-examination, and I agree, that the damage indicates that the two vehicles were travelling with “significant relative speed”. If the ATV was stopped, then the dirt bike must have been travelling quickly. It is improbable that Mr. Bye could hit the ATV at speed and simply, as Mr. Newman claims, “roll off”, to land immediately behind it.

[68]        Finally, while Mr. Newman’s testimony can explain how the front left of the ATV was damaged, it does not explain the transfer marks to the upper rear left of the dirt bike. Mr. Richards testified, and I accept, that the bike must have been leaning to the left at an approximately 45-degree angle at impact to create the transfer marks. Therefore, the dirt bike would have to have entered a high-side, leaving a skid mark that ended roughly at the point of impact. None of the witnesses described a skid mark ending at or near the ditch, but instead, a skid mark roughly in the middle of the road, deviating towards the west.


[69]        I find Mr. Newman’s testimony to be an improbable account of the collision, and I do not accept it.


[172]     In summary, I find Mr. Newman fully liable for the collision and Mr. Bye’s resulting injuries, and make the following awards:

1) Non-pecuniary damages: $220,000.00
2) Past income loss: $218,640.00
3) Future income loss: $1,200,000.00
4) Cost of future care: $1,100,000.00
5) Loss of housekeeping capacity: $125,000.00
6) Special damages: $81,557.61
7) Health care costs: $101,058.13

[173]     Mr. Bye’s total damages are $3,046,255.74.


[174]     Unless there are circumstances of which I am unaware, I order that Mr. Bye have his costs at Scale B. Otherwise, the parties should contact Supreme Court Scheduling within 30 days of these reasons to set down a hearing for costs.

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