This was a personal injury trial involving claims of brain injury, whiplash and spinal fracture. The bicycle accident occurred on Broadway Street in Vancouver, approaching the intersection of Broadway and Guelph Street. The cyclist was proceeded forward when a vehicle turned left hitting his bicycle.( Davis v. Jeyaratnam, 2022 BCCA 273)
The Witness Statement
The Cyclist attempted to corroborate his version of events by introducing an out-of-court statement from a taxi driver who allegedly witnessed the entire accident. By the time of trial the taxi driver no longer worked for Yellow Cab. Attempts to locate him revealed that he had returned to Somalia several years prior. The judge however found the statement was not admissible under the principled approach to hearsay evidence, and admitted only a few uncontested portions of the statement.
To admit the statement under the principled exception to hearsay, the judge found it had to meet the thresholds of necessity and reliability. As the witness was unavailable, only reliability was at issue. The judge ultimately concluded that the evidence failed to meet the reliability threshold. The statement was not a contemporaneous recording, but was instead a statement drafted by the investigator a month after the accident. The judge was also concerned with the investigators independence. The Court of Appeal found that the judge erred in her approach to the hearsay statement.
In this case the investigator, a retired police officer, was a professional statement-taker. The witness was an adult, with no disabilities or vulnerabilities that would affect his ability to give a statement. While the investigator’s failings, as perceived by the judge, were relevant to the issue of ultimate reliability, she was wrong when she considered them in assessing threshold reliability.
That error permits the Court of Appeal to determine whether threshold reliability is met. However, as a new trial was required as a result of errors based on the other main ground of appeal, it was left to the new trial judge to determine the admissibility of this statement.
Failure to consider material evidence
The trial judge had to determine two significant facts: (1) whether the vehicle actually struck the cyclist and (2) whether the cyclist was riding his bicycle on the sidewalk. Unfortunately, the judge treated the evidence as a “he said, he said” contest, and she did not consider the objective and independent evidence that was tendered at trial.
the judge made no mention of the evidence from the hospital, the family physician, or other medical professionals who treated the cyclist after the accident. The judge did not consider the evidence of the lay witnesses.
A judge is not required to refer to every witness that testified or every piece of evidence called at trial. Here, however, there was competing evidence regarding the main issue at trial; whether an accident occurred. It was therefore incumbent on the trial judge to consider, in her analysis of the credibility of the competing witnesses, evidence that would or could support one version of events or the other before reaching a conclusion on which version of events to accept.
The trial judge committed reversible error in failing to conduct the proper analysis and overlooking a significant body of evidence that could have weighed in favour of the cyclists’ version of events. Had the judge considered the evidence, she may have come to a different conclusion of whether the cyclist collided with the vehicle at all.
Because the Court of Appeal was not able to determine from the record what occurred, a new trial was ordered.