If you are injured in a motor vehicle collision, it is important to watch what you say at the scene of the accident, as this information can later be detrimental to the value of your claim, and can even lead to its’ outright dismissal. There can also sometimes be a common misconception that when someone apologizes at the scene, then this automatically means that they caused the accident. This is not the case, given section 2 of the Apology Act.

 

In Dupre v. Patterson, an accident occurred between a cyclist and a motorist. The matter was brought via the fast track route. The Defendant brought a motion for Summary Judgement, in order to dismiss the action, claiming she was not liable in any way. The Plaintiff cyclist had apologized to the Defendant after the collision. The Court ruled that the Defendant was liable for the accident, despite any apology made by the cyclist which, by virtue of section 2 of the Apology Act, does not constitute an admission of fault or liability.

[40] Defence counsel pointed to some statements made by Ms. Dupre to Ms. Patterson after the accident, when Ms. Dupre apologized. In view of my conclusion that Ms. Patterson’s negligence caused the accident, I will address this point only very briefly.

[41] First, it was unclear, based on the submissions, how I was being asked to use Ms. Dupre’s statements and whether they were admissible for the purpose for which they were being tendered. Secondly, it is clear that an apology made by or on behalf of a person in connection with any matter does not constitute an express or implied admission or acknowledgment of fault or liability: see the Apology Act, S.B.C. 2006, c. 19, s. 2.

[42] Ms. Dupre explained that when she spoke to Ms. Patterson after the accident, she was upset and in considerable pain from falling and injuring her shoulder, and she felt embarrassed by the attention the accident had caused. She did not remember saying anything about having over-extended or pushed herself too far on the bike ride. Roadside admissions at accident scenes are unreliable, since people tend to be shaken and disorganized. This describes Ms. Dupre’s situation. Her statements do not affect my conclusion that Ms. Patterson’s negligence caused the accident.

 

In Gibbs v. Carpenter, the Defendant was intoxicated when he struck the Plaintiff‘s vehicle. The owner of the Defendant‘s vehicle denied giving permission to the Defendant to drive the vehicle. The Court would eventually rule that there was no express or implied consent given to the Defendant to drive the vehicle. Prior to this, the Court also had to rule on the admissibility of an oral statement given by the owner to the police shortly after the accident, which stated that the owner had not granted permission, but if she did, then she had expected someone else to drive. The statement was ruled admissible, however a later, written statement clarifying the original statement was not, as it was ruled that it did not form part of one continuous statement, due to the intervening events.

 

[61] I am unable to agree that the written statement forms part of one continuous statement, given the intervening events. It is not as though the statement was given at the scene mere minutes after the first conversation. Ms. Kusch went home, slept, spoke to her father about what had happened and it was upon his suggestion that she prepared a written statement. Ms. Kusch had the opportunity to reflect and consider what information she would include in her statement. In my view, it cannot be considered a mere continuation of the earlier oral statement.

 

[63] I am also of the opinion that the statement is not admissible as a prior consistent statement rebutting an allegation of recent fabrication.

 

[71] In the present case, any reason that Ms. Kusch may have to fabricate a story was clearly present at the time she prepared her type-written statement. She faced having to explain to her father, a police officer, how an inebriated young man with a learner’s permit came into possession of her car and came to be involved in a serious car accident. She may very well have appreciated that there might be insurance implications arising out of who was driving. She may also have been influenced by the advice of her father in forming her statement. The statement was not prepared prior to the existence of a reason to fabricate; it was formed afterward. In my view, it does not have any probative value and does not fall within the exception to the general rule that excludes prior self-serving statements. It is not admissible.

 

In Koshman v. Brodis, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim f0r damages for pain and suffering, as well as other heads of damages. The accident occurred at an intersection, with both the Plaintiff and Defendant claiming they had the green light in their favor. There were also independent witnesses for both sides that confirmed each party’s respective positions. The Plaintiff would ultimately succeed, with the Court attributing great weight to an admission made by the Defendant at the scene.

 

[26]         A determination should not be made simply by counting the number of witnesses on each side, nor is the testimony of an off-duty police officer necessarily of more weight than that of a civilian witness.

[27]         Clearly, different people at the scene saw things differently, and have different memories of how this accident occurred. That is not particularly unusual in a trial such as this.

[28]         What is somewhat unusual in this case is that both the plaintiff and a neutral civilian witness, Mr. Fontaine, testified that after the collision the defendant acknowledged responsibility. The plaintiff testified that the defendant said to her at the scene that the accident was her fault. The defendant testified that if she said this, she did not mean to imply that she admitted liability. Mr. Fontaine testified that the defendant said to him, “Oh my God, I’m so sorry, I didn’t see the red light.” The defendant denies having said those words.

[29]         I do not accept the defendant’s explanation for what she said to the plaintiff at the accident scene, and I do not believe her denial of what she said to Mr. Fontaine. I am satisfied on a balance of probabilities that she did say these things, and she did so because she was aware that she had entered the intersection against a red light.

 

In Aymont v Capp, the Plaintiff and Defendant again had contradictory versions of events of how the accident was caused. Based primarily on statements given by the Plaintiff to ICBC, police, and a chiropractor a day after the accident, the Court dismissed the Plaintiff’s claim.

 

[15]           On May 21, 2004, Ms. Aymont met with Mr. Bonner of the Insurance Corporation of British Columbia (“ICBC”) at his office.  Mr. Bonner is a bodily injury adjuster.  He was the adjuster assigned to Ms. Aymont’s file ……

 

[18]           Mr. Bonner produced a hard copy of the statement for Ms. Aymont to review.  She thought that the second page statement was “all mixed up.”  Ms. Aymont says she made certain corrections to the statement in handwriting.  The last sentence of the statement is “I have nothing to add to this statement, which is true to the best of my memory.”  Ms. Aymont signed the statement.  She says that Mr. Bonner said that the statement did not need to be exact and “we just needed to get something down” and that it would not be used in court.  Mr. Bonner drew the diagram.  Ms. Aymont says she only wrote the word “visibility?” on the sketch and signed it.  She says that she left the adjuster’s office feeling as if the statement did not say what she wanted to say.  She was tired and had a headache.  Ms. Aymont did not contact Mr. Bonner or anyone else at ICBC to revise her statement.

 

[19]           Mr. Bonner says that the statement reflects what Ms. Aymont told him.  He says that he did not tell her that the statement was not important and that it would not be used in court.  He says, “I would have impressed upon her the importance of her statement in representing her claim.”

 

[75]         Most importantly, Mr. Brown’s opinion is consistent with the evidence that Mr. Capp provided, and is consistent with the statements that Ms. Aymont made to her chiropractor, Cst. Andreucci and Mr. Bonner, the insurance adjuster. 

 

[76]         As stated, I have no reason to find that Mr. Capp’s evidence is inaccurate or untrue.  His evidence was straightforward.  It was not undermined in cross-examination.  There is no basis upon which I can find that his version was incorrect or that he suffered from a visual impairment or any other impairment. 

 

[77]         Mr. Capp’s evidence that the Aymont vehicle was moving when he first observed it is consistent with the statements that Ms. Aymont made to her chiropractor.  In the form that she completed, or directed Dr. Holroyd to complete, she says that she was not stopped and was moving at about 10 km/hour.  In her statement to Cst. Andreucci she stated that she just did not see Mr. Capp’s vehicle.  She told Mr. Bonner that she had pulled forward from the exit onto Bartley Road before being hit.  All of these statements are consistent with the circumstances that Mr. Capp describes. 

 

[78]         I find as a fact that Ms. Aymont was not stopped “well before the fog line”.  She was moving from the exit into the southbound lane of travel on Bartley Road.  She was going slowly, likely less than 10 km/hour.  Her foot was not on the brake.  She was not looking in the direction of the oncoming traffic, but was engaged in a conversation with her son Joel who was sitting in the passenger seat, and had turned her face toward him to talk about his drink.

In Barrie v. Marshall, the Plaintiff and Defendant had conflicting versions of events at trial as to who was at fault for the accident. The Court, relying heavily on admissions made at the scene by the Plaintiff, dismissed the Plaintiff’s claim in its’ entirety.

 

[21]         Two members of the Abbotsford Police, Constables Davidson and Zawadsky, attended at the scene.  Both testified at trial.  They arrived after the ambulance, and found Mr. Barrie’s motorcycle in the intersection and Ms. Marshall’s car on the shoulder of Marshall Road.  The gist of the officers’ evidence is that they carried out a brief investigation, spoke to both Mr. Barrie and Ms. Marshall, and concluded that the collision was Mr. Barrie’s fault.  This conclusion was based at least in part on a statement that Constable Zawadsky testified Mr. Barrie made to him (parts of which Constable Davidson testified he overheard) to the effect that he (Mr. Barrie) was not paying attention and ran into the back of Ms. Marshall’s car.  Mr. Barrie denies making any such a statement to anyone, although he did testify that he told Ms. Marshall the accident was probably his fault.

 

[22]         Of course, the evidence concerning Mr. Barrie’s statement or statements at the scene is not conclusive of fault or liability.  However, it is evidence I can consider in determining liability on the facts of this case.

 

[33]         I have concluded that Mr. Barrie also does not accurately recall events immediately following the accident.  This is not surprising, since he was knocked unconscious.  Mr. Barrie recalls an exchange with Ms. Marshall, in which he told her the collision was his fault.  However, no other witness, including in particular Mr. Crossman, mentioned any such an exchange between them, or testified that they were seen speaking to one another.  Ms. Marshall’s evidence was that she and Mr. Barrie never spoke to one another.  I have concluded that Ms. Marshall’s recollection is the more accurate.

 

[34]         However, Mr. Barrie’s recollection of telling someone at the scene that he was at fault is consistent with Constable Zawadsky’s evidence about what Mr. Barrie said to him at the scene.  I find that, when speaking to Constable Zawadsky, Mr. Barrie made a statement to the effect that he had not been paying attention and ran into the back of Ms. Marshall’s car.  Constable Davidson overheard Mr. Barrie say words to the effect that he was not paying attention.  The existence of such a statement provides a reasonable explanation for the conduct of the officers at the time in relation to the accident, and the lack of further investigation.  The officers were satisfied that Mr. Barrie had assumed responsibility for collision.  Neither of the officers was told anything to contradict what Mr. Barrie told Constable Zawadsky.

 

[35]         I find therefore that Mr. Barrie, an inexperienced driver, was operating his motorcycle without due care and attention, and was following Ms. Marshall’s vehicle too closely as they travelled north on Mt. Lehman Road.  As a result, Mr. Barrie was unable to avoid colliding with Ms. Marshall’s car when she went to make a right turn onto Marshall Road from Mt. Lehman Road.

 

[36]         In closing argument, counsel for Mr. Barrie submitted that, if I accepted Ms. Marshall’s evidence that she activated her right signal and tapped her brakes to make the turn at Marshall Road, then it was unlikely there would have been any collision.  The submission was made in support of Mr. Barrie’s position that his version of the facts ought to be accepted in preference to Ms. Marshall’s (based on the reasoning that, since there had been a collision, Ms. Marshall must be wrong), and that Ms. Marshall was, accordingly, at fault for the collision.  However, the conclusion that there likely would have been no collision if Ms. Marshall was driving as she said depends on a finding that Mr. Barrie was in fact paying proper attention to what was going on in front of him, in accordance with his obligations as a following driver.  I find he was not. 

 

[37]         In summary, Mr. Barrie has not discharged the onus on him to show that he was not at fault for the collision.  Rather, Mr. Barrie’s conduct caused the collision.