Let’s review a recent decision in which liability is in issue.  As we know, the Court will rely on witness statements to assist with their finding of facts, which will in turn, assist with the determination of fault.

In this article, we are going to pay attention to the Court’s comments in relation to the witnesses at trial and the factors that the Court notes as to why certain witnesses were less credible and/or less reliable.

The points will be highlighted in bullet form.

I encourage you to visit the actual decision to have a more thorough review of this liability analysis.  The case is a liability-only trial referenced as Bay v Woollard, 2019 BCSC 1073 (CanLII).  Three vehicles were involved in this collision.  It was a line-up of rear end collisions.  The Plaintiff rear-ended a vehicle that rear-ended a vehicle ahead of it, or in the alternative was pushed into the vehicle ahead of it by the Plaintiff’s vehicle.  The conclusion:  the Plaintiff was found 75% at fault, and will therefore recover 25% of his damages.

When reviewing these bullet points, it will give you some guidance on matters that witnesses should be prepared for when attending trial.  In most cases, preparing a witness for trial will be helpful and may assist the witness with being less nervous, anxious, which may result in a better presentation when giving their testimony.  Your lawyer will likely take the lead on this task.

The Court’s comments in prior published decisions are always helpful.  You can determine where other witnesses have not done so well when giving their testimony.  This will hopefully assist with preparing your own witnesses for trial.

1^st Witness

• The 1^st witness was not reliable for a number of reasons (in this case, the Plaintiff).
• This witness had suffered a stroke several years ago and this may have impacted the witness’s testimony (Note: have you done your research on the witness ?  perhaps there are details that may be raised that will touch on the reliability of the said witness).
• When dealing with the credibility and reliability of a witness at trial, please also review the following articles on Case Law Corner:
  • Credibility and Reliability of the Plaintiff’s Evidence
  • Liability Trial – Credibility and Reliability of a Witness
  • Credibility – Collateral Witnesses
  • Compelling Evidence: Collateral Witnesses
• Length of time between the date of the accident and the date of the witness evidence (It is very important to speak to witnesses early on in the litigation process and where liability is an issue – be certain to stay in touch with the witness through the conduct of litigation to keep them well informed. Perhaps provide their statement to them, but also review their statement and evidence with them in person if possible to ensure recollection of the events remains in tact.
• Be observant of the hesitant manner of the witness’s presentation. The hesitation of this 1^st witness led the Court to deem the said witness less than reliable.  (This may be avoided if careful preparation of the witness takes place.  There are many times, however, that even with preparation – the witness may simply not present well at trial for a number of reasons.
• The Court came to the conclusion that the witness was not reliable because the evidence of the witness did not align with other evidence that was available.
• Review all the presented evidence that supports the facts that will be presented by both parties.
• This witnesses statements did not accord with the presented evidence – the witness was of the position that the accident occurred between 5 am and 5:30 am and acknowledged that it was getting light out. The Court did not accept this statement as it was late December and it simply does not get light out between the hours of 5 and 5:30 am.
• Ensure that the details of all material facts are being reviewed with your witness well prior to trial.
• The two defendants had stated that the accident occurred more approximately at 8 am and this evidence made more sense to the Court as both Defendants were on their way to work, which was at 8 am, rather than 6 am
• Inconsistent statements made by a witness creates a risk that the Court may find the witness less reliable than other witness testimony. This witness provided inconsistent dates as to his medical treatment.  It shows that the facts, as known by the witness, may be less than accurate.  The date provided for a chiro visit shortly after the accident did not actually take place until near 16 months after the collision.  The fact was simply inaccurate.  The witness comes across as unreliable.
• Description of the accident scene is also important and detailed questions of the crash will be asked in this regard. If the statements made by the witness are not accurate based on other credible evidence provided, the witness may be less than reliable.  In this instance, the witness offered a description of the SUV as being airborne after colliding with the opposing vehicle, but this description did not match with the photographic evidence that was submitted which depicted the damage done to the SUV.
• This witness did not notice whether there was a flashing light at the scene, while both Defendants testified was operating just prior to the crash.
• In short, the evidence of the other witnesses was deemed to be more reliable than the 1^st witness

Some points to be aware of when assessing liability:

1. Consider which driver reacted more reasonably at the time of the collision.
2. Consider which driver reacted in a more prudent manner.
3. Which party slowed their vehicle?
4. Review the position of all vehicles at the scene.
5. Were brake lights in working order?
6. Review road safety rules.
7. Are there photographs depicting the extent of the damage of the vehicles?
8. Photographs are very helpful to the Court.
9. Photographs may assist the Court with analysis.
10. What were the speeds of the vehicles involved in the crash?
11. Review the positions of each vehicle to assist with your own theory of fault.
12. Was one vehicle following too closely to the other?
13. Review all contributing factors in advance.
14. Review road conditions.
15. Consider whether you need an engineer to assist with analysis for the benefit of the Court.

Rear End Collisions – Case Law to be Aware of

In Dorsett v. Sahib, 2018 BCSC 1884, Madam Justice Matthews summarized the law of rear-end collisions as follows:

[61] This Court recently described rear-end collisions as “merely evidence, for which plaintiff and defendant can offer different explanations”: Wright at para. 17. A trial judge may, but is not required to, draw an inference of negligence from the fact that there was a rear-end collision: Singleton at para. 38. Such an inference will be highly dependent on the particular facts of each case: Singleton at paras. 36-38.

[62] An inference of negligence is often drawn in cases involving rear-end collisions because, as stated in Wallman v. John Doe, 2014 BCSC 79 at para. 410:

[410] … the following driver owes a duty to drive at a distance from the leading vehicle that allows reasonably for the speed, traffic and the road conditions: Barrie v. Marshall, 2010 BCSC 981, at paras. 23-24; Rai v. Fowler, 2007 BCSC 1678, at para. 29. This duty is codified in ss. 144 and 162 of the Motor Vehicle Act.

[63] In Singleton, the Court of Appeal held that there was an inference of negligence against a defendant for rear ending the plaintiff’s vehicle that had stopped, in the normal course, at a stop sign. However the court found the inference had been negated by the evidence of oil on the road which could have caused the defendant to not be able to stop in time.

[64] In Waters v. Mariash, 2012 BCSC 927, Madam Justice Humphries declined to draw an inference of negligence against the rear-end driver. The plaintiff had been traveling eastbound on Highway 1 in the right lane on a rainy, windy day when a tree suddenly fell across the highway, cutting off both eastbound lanes of traffic and causing the plaintiff to brake sharply and hit the tree. The rear-end driver, who was driving a semi-trailer truck behind the plaintiff in the left lane, braked sharply but was unable to stop before hitting the tree and striking the back of the plaintiff’s vehicle.

Degrees of Fault – Relevant Case Law

[62]         The matter of determining the degrees of fault is governed by the Negligence Act, R.S.B.C. 1996, c. 333. It provides, at ss. 1-3:

1(1) If by the fault of 2 or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree to which each person was at fault.

(2) Despite subsection (1), if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability must be apportioned equally.

(3) Nothing in this section operates to make a person liable for damage or loss to which the person’s fault has not contributed.

2 The awarding of damage or loss in every action to which section 1 applies is governed by the following rules:

(a) the damage or loss, if any, sustained by each person must be ascertained and expressed in dollars;

(b) the degree to which each person was at fault must be ascertained and expressed as a percentage of the total fault;

(c) as between each person who has sustained damage or loss and each other person who is liable to make good the damage or loss, the person sustaining the damage or loss is entitled to recover from that other person the percentage of the damage or loss sustained that corresponds to the degree of fault of that other person;

(d) as between 2 persons each of whom has sustained damage or loss and is entitled to recover a percentage of it from the other, the amounts to which they are respectively entitled must be set off one against the other, and if either person is entitled to a greater amount than the other, the person is entitled to judgment against that other for the excess.

3 (1) Unless the court otherwise directs, the liability for costs of the parties to every action is in the same proportion as their respective liability to make good the damage or loss.

(2) Section 2 applies to the awarding of costs under this section.

(3) If, as between 2 persons, one is entitled to a judgment for an excess of damage or loss and the other to a judgment for an excess of costs there is a further set off of the respective amounts and judgment must be given accordingly.

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