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Who to believe?

How does the court decide who to believe in a “he said, she said” situation?  What if you have told a lie during my Examination for Discovery, will that kill my credibility?

In this week’s case of Matharu v. Gill (2016 BCSC 624), the plaintiff was injured when she was driving herself to work in her father’s truck. The plaintiff was driving in the left lane (fast lane) and the defendant turned onto the road and was proceeding in the right lane when his van collided with the plaintiff’s truck. Mr. Justice Butler concluded that in order for the collision to occur, one of the two vehicles left its intended lane of travel and entered the other lane. There were no independent witnesses, and the parties disagreed on how the collision occurred.

Despite the serious matter of making a false statement under oath (she had lied about where she was going at the time of the collision because her father did not want ICBC to know that she was driving his truck to work), Justice Butler accepted the plaintiff’s evidence about how the collision occurred. He made the following comments about the implications of her previous false statement:

[7]             I reject the defendant’s attack on the credibility of Ms. Matharu. It is a serious matter to make a false statement under affirmation at an examination for discovery. Ms. Matharu’s statement that she was driving to Save-on-Foods rather than to work was false. She made the statement at the request of her father who did not want to let the insurer know that she used the vehicle to drive to work. I accept Ms. Matharu’s acknowledgment of the false statement and her reason for making it. At the time of the accident, she was 23 years old and was living with her family. She impressed me as a cautious witness who did not overstate her evidence in any way, whether about damage or liability issues. However, I also found her to be young for her age, timid and anxious by nature. I conclude that her statement on discovery was made out of deference and obedience to her father. While it was improper for her to misstate her reason for driving the vehicle on that day, it does not cause me to reject the rest of her evidence. As I have indicated, I found her to be a careful and reliable witness.

Her evidence was consistent with that of the first responders as to the location of the collision, and the defendant’s evidence was inconsistent. The 81-year old defendant also gave other inconsistent statements about his speed of travel, the point of impact, or the time of the collision. Justice Butler was unable to accept his evidence as a result of the inconsistencies, and made the following remarks about how to reach a conclusion on credibility generally and in the case at hand:

[11]         Both parties rely upon the decision in Hudak v. Gorse, [1995] B.C.J. No. 1601 (C.A.) for the proposition expressed by Hollinrake J.A. at para. 7, that a useful tool for assessing credibility is a consideration of the probabilities:

7          Where at the end of a day the trial judge finds himself or herself in a quandary as to whose evidence to accept, a useful tool in reaching that conclusion on credibility is to consider what probably happened on the basis of the evidence the trial judge does not reject as not being worthy of credit.

[12]         I am not in a quandary here as to who’s evidence to accept. Nevertheless, I find that the probabilities as to how this accident occurred fully support Ms. Matharu’s position. The geometry of the intersection is somewhat unusual. When driving toward the intersection between Holt Road and Nordel Way, a driver in Mr. Gill’s position is travelling 180° in the wrong direction. The right turn requires a sweeping turn around a wide curve. It is easy to see how a driver could miscalculate the turn and drift into the left lane. It is more likely that Mr. Gill unintentionally executed a wide turn, than that Ms. Matharu overtook Mr. Gill’s vehicle and turned into it. Ms. Matharu was travelling at a safe speed, she was not intending to change lanes, there was nothing restricting her visibility and she had no reason to be distracted.

[13]         I also find support for the conclusion I have reached in the photographs of the vehicle damage. I agree that I must be cautious in inferring too much from photographs of vehicle damage. However, the scrapes on the driver’s side front bumper of the defendant’s vehicle are consistent with the accident occurring as alleged by Ms. Matharu. The bumper is rounded and the scrapes start on the front side of that rounded edge. In other words, they are inconsistent with the suggestion that Ms. Matharu’s vehicle initiated the accident by driving into the side of Mr. Gill’s vehicle.

[14]         In summary, Mr. Gill negligently drove into the left lane of traffic as he was turning right onto Nordel Way. He is entirely at fault for the accident of March 15, 2013.

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