This article appeared first in the Georgia Straight and has been edited online.
Proving someone’s negligence can be tricky in some scenarios. In my last article, I explained how lawsuits can still succeed in hit-and-run car accidents where the negligent driver can’t be identified. Here’s another scenario: what if the at-fault vehicle was missing its driver entirely?
In a bizarre series of events, a man was injured by a runaway snowmobile. By that, I mean the snowmobile’s driver fell off, but the snowmobile continued on its own and struck someone along the way. This was a case heard by the B.C. Supreme Court recently.
It all started when a group of adventurers went out snowmobiling — or “sledding”, as those in the know have been quick to point out to me — around Mount Renshaw, near McBride, B.C. The group split up to explore the alpine backcountry.
While driving uphill, one person hit an unexpected snowdrift. His snowmobile pitched forward and downward. As a result, he was thrown right off. His snowmobile continued on its own up the hill. Amazingly, it fell off a 100-foot cliff, climbed out of a 20-foot ravine, and then continued full throttle.
Over a kilometer away, we have a second snowmobiler. That person was a Good Samaritan. He saw a third snowmobiler stuck in the snow. This Good Samaritan started walking over to help.
He had no idea that a runaway snowmobile was hurtling towards him. If this wasn’t dramatic enough, a fourth person was at a higher elevation and could see what was about to happen. He desperately shouted out warnings but he wasn’t heard.
The court concluded: yes, that driver was negligent. He was 100-percent at fault. To reach this decision, the court focused on a safety feature of the snowmobile. The snowmobile had a kill switch that would kick in if a cap was dislodged. This cap was supposed to be tied to the driver’s jacket so that if the driver fell off the snowmobile, the cap would dislodge and activate the kill switch.
The driver insisted that he tied the safety cord to his jacket. The court didn’t buy it. The court found the driver to be an unreliable witness. It rejected that testimony and concluded that the driver failed to use the safety feature. This amounted to negligence.
This case illustrates the importance of credibility. At any trial, the judge (or a jury of your peers) must decide how much weight to give to anyone’s testimony. It’s not simply about determining whether or not a witness is lying.
It’s piecing together what happened from testimonies that don’t match perfectly. That happens because everyone’s memories fade with time.
So how does the court assess credibility? Consistency is key. If a witness changes their story drastically over time or over the course of the lawsuit, their credibility may be hurt. On the other hand, if the account has remained the same over the years, the witness seems more reliable.
Another aspect of credibility is a witness’s appearance at trial. A judge will look to the witness’s gestures, expressions, and mannerisms. These might suggest the witness is cooperative and candid. They could also suggest the witness is cagey or evasive.
Common sense matters a lot. Is there anything suspicious about the testimony? Does the witness’s memory seem too good? Did the testimony seem overly rehearsed? Does the witness remember only details that help their case and conveniently forgets the details that might hurt it? Does the witness have a reasonable explanation for any inconsistencies?
For example, two drivers may dispute the colour of a traffic light in a car-accident case. In a dispute over a will, two siblings may have contradictory versions of what their deceased parent promised them. In a slip-and-fall claim, an injured customer may disagree with the store manager about the conditions of the floor.
No matter what the area of law may be, the courts are there to get to the truth.
Many businesses have been forced to close, limit their hours, or reduce their capacity. Despite a vaccine, the economic impact will likely continue, particularly in the face of new strains of the virus.
On January 28, 2021, the Ontario Superior Court addressed “inadequacies in current legal responses to internet defamation and harassment” by creating a new tort of internet harassment and cyber bullying.
While the global pandemic has been incredibly disruptive, the Court is embracing these changes and the legal community is using the tools available to move matters through the court system despite challenges.