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.
Recently, Hammerco Lawyers held the airline giant Cathay Pacific accountable in a class action win affecting over 9 million passengers.
Partner, Dale McGregor, helped our client previously for a tragic 2008 motorcycle collision that ended her working life. In 2015 and 2016 she was then involved in two further collisions that left her even more disabled.
On May 1,2021 ICBC is enacting a new no-fault insurance model. This model is referred as an “enhanced care”, individuals involved in car accidents in British Columbia will no longer be able to sue for injuries.
Insurance brokers have a duty to give sound insurance advice. In a commercial insurance context, brokers are required to know the in/out of a clients’ business in order to source and secure the proper insurance coverage.