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Brain Injured Claimant Sent Back for New Trial Because of Conflicting Eyewitness Testimony


Duncan v. Mazurek, 2010 BCCA 344
July 26, 2011- The injury claimant was jaywalking across Canada Way in Vancouver when she was hit by a vehicle. The Claimant had no memory of the car accident due to brain injury; the eyewitness evidence conflicted; and the driver that hit the injury claimant died before the personal injury trial. The trial judge found the pedestrian and driver equally at fault but the Court Appeal disagreed and ordered a new trial.
The Appeal Court was persuaded that the lapses by the trial judge constituted a palpable and overriding error.  The trial judge found the second eyewitness credible, yet he failed to deal with the inconsistencies in her evidence. He misapprehended the evidence and it appears he failed to consider a significant portion of her evidence that was contrary to his findings of fact. His unexplained rejection of the driver’s discovery evidence, and the two erroneous findings of fact compounded that error.
The Vancouver lawyers representing the driver asked the Court of Appeal to dismiss the claim but the court refused stating:
“…As stated previously, the conflicting versions of how the accident occurred raise questions as to the reliability of the two eyewitnesses. That difficult issue is best dealt with by a trial judge who has seen and heard the witnesses as they testify, and is in the best position to weigh their evidence and resolve any inconsistencies in reaching a fair result.
[36] I would accordingly allow the appeal and direct a new trial.”Posted By Mr. Renn A. Holness
 Issue: Should the eyewitnesses to the accident be forced to go back to court again?

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