I think I remember my collision accurately, and I think I can piece together what happened – how important is it to be totally honest and clear? Do those little details really matter?
In a case released by the British Columbia Supreme Court this week, the court deliberated liability for a collision between a left-turner (the plaintiff) and a straight through driver (the defendant) (Dhir v Ali 2017 BCSC 1383). The evidence of all of the witnesses was in conflict, and both parties sought to attribute liability entirely to the other. The plaintiff and his passenger, who happened to be his brother, said that the light was green when he entered the intersection, turned amber as he commenced his turn, and was red by the moment of impact. He testified that the defendant approached the intersection at an excessive, out-of-control level of speed. However, his evidence about the defendant’s rate of speed and how far his car rebounded from the impact differed from discovery to trial.
Those differences ended up being critical in the court’s decision to attribute liability entirely to the plaintiff and dismiss his claim. The plaintiff’s different answers didn’t necessarily show that the plaintiff was lying, but showed that he was willing to guess and did not in fact have an accurate recollection of the collision. Justice Milman said the following of the plaintiff and his brother’s credibility:
[40] I have deeper concerns about the credibility of the plaintiff’s account, as well as that of his brother. In light of the injuries they sustained and the litigation that has resulted, they must have discussed the accident many times in the months after it occurred. I find that is the most likely explanation for the similarity of their accounts at trial – both their evidence in chief and the conflicting accounts they gave on discovery, with which they were both impeached in a similar way during cross examination at trial.
[41] Neither the plaintiff nor his brother is a neutral, disinterested witness. Nor, for that matter, is the defendant. While I am not prepared to find that their evidence was deliberately fabricated to suit their respective litigation interests, I do find that they each must have, to some extent, reconstructed events in a manner that conveniently aligned with those interests, whether consciously or not.
Justice Milman ended up accepting in large part the evidence of the sole independent witness, on the strength of which he attributed liability entirely to the plaintiff.
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