If I am hit by a driver with something of a record of driving offences, can my lawyer include his driving record in the pleadings? Does the fact that he has a history of speeding assist with proving he was speeding when he hit me?
In a decision released earlier this week (Rezai v. Uddin, 2017 BCSC 1746), the plaintiff’s lawyer tried to amend their pleadings to allege that the defendant driver had on several other occasions driven in a manner that put others at risk. The lawyers tried to make this amendment as “similar fact evidence”, based on the defendant’s five prior driving offences:
a. on Nov. 27, 2008, the defendant was charged with speeding, for which he plead guilty;
b. on Dec. 4, 2008, the defendant was charged with failing to yield to a pedestrian on a green light, for which he plead guilty;
c. on December 5, 2008, the defendant was charged with entering an intersection when the light was red for which he plead guilty;
d. on March 11, 2009, the defendant was charged with speeding, for which he plead guilty;
e. on January 17, [2015], the defendant was charged with using an electronic device while driving. He failed to appear at the hearing and was deemed not to dispute the charge.
Because the timing of the sought amendment was near to the time of trial, it required the leave of the court, so the plaintiff’s counsel applied to the court for leave. After hearing the arguments, Master Wilson dismissed the application, concluding that a poor driving record did not mean that he was liable for the subject collision – no more than a clean prior driving record absolve him of liability:
[25] The only possible purpose for Similar Fact Pleading here, given the variety of infractions, would be to enable the plaintiff to suggest that the defendant is a generally bad driver based on his driving record. However, this does not inform the analysis of whether or not he was responsible for the subject accident, any more than a clean driving record would tend to absolve him of responsibility.
[26] It is highly improbable that the trial judge would admit the defendant’s prior infractions as similar fact evidence to support a finding of liability on the part of the defendant. Evidence of prior speeding infractions does not lead to the inference that the defendant was speeding at the time of the accident. Drivers often speed without receiving violation tickets. Proof of speeding does not conclusively establish negligence in the case of an accident. In Hamm Estate v. JeBailey (1974), 12 N.S.R. (2d) 27, evidence of driving record and habits was held to be irrelevant and inadmissible for the purpose of determining liability.
[27] In Witten v. Bhardwaj, [2008] O.J. No. 1769, the court was asked to strike certain portions of a statement of claim that also involved a pedestrian struck by a vehicle. The plaintiff had pleaded that the defendant had a ‘pattern of reckless conduct’ that included multiple speeding offences. The allegations of speeding in the Witten case were a year before and a year after the accident in issue.
[28] After reviewing the decision of Wilson v. Lind, Master Haberman said that there were only two purposes for the plea about the defendant’s driving record and held the plea should be struck regardless of which applied:
The plaintiff’s purpose in including these additional allegations about Paawan’s driving patterns could only involve one of two issues: 1) to enable the plaintiff to ask the court to rely on Paawan’s driving record when assessing whether he was likely speeding at the time of this accident; or, 2) to provide “colour” for the court, so that Paawan will be viewed as a bad driver generally, and hence, be seen as likely responsible for this accident. If the former, what the plaintiff seeks to plead in the impugned portion of paragraph 15 is clearly evidence, not material fact, and on that basis should be struck. If the latter, it is frivolous and should be struck.
[29] I agree. The Similar Fact Pleading is either evidence and therefore improper to include in a pleading, or is intended to suggest that the defendant is generally a bad driver and therefore he is more likely to be the cause of the subject accident, in which case it is frivolous.
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