The claimant was allegedly injured in a car accident on Kingsway, approaching the intersection at Hall Avenue, in Burnaby. However in this pithy decision the Court of Appeal permitted the negligent driver to dispute that the claimant was in the vehicle at the time of the car accident despite admitting negligence (Brennan v. Colindres,2017 BCCA 413).
The negligent driver testified that when her vehicle collided with the Ford Taurus, the driver of the Taurus was a woman, not a man. She testified that there was a man in the front passenger seat of the Taurus, but that claimant was not that man.
The trial judge concluded that the defence ought to have been specifically pleaded that the claimant was not driving and that allowing the amendment so close to trial would cause extreme prejudice and were res judicata. In overturning this ruling the Court of Appeal stated,
[12] In my view, the pleadings cannot be interpreted in that way. The defendants’ denial of the particulars of the accident included a denial that the plaintiff was in his vehicle at the time of the accident. In the context of the response to civil claim, the only admission that the defendants made was that the accident was a result of their negligence. That did not preclude leading evidence or arguing that the plaintiff was not involved in the accident.
[13] Unfortunately, I see no other option, in the circumstances, than to allow the appeal and remit the matter to Supreme Court for a new trial. The defendants are entitled to the costs of the appeal. Costs of the original trial will be in the discretion of the judge hearing the new trial.
The claimant had also filed his own appeal, given the trial judge only awarded him $27,000, but his appeal was considered moot. Back to trial they go.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.