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Injured Commuter Gets New Trial as Collateral Fact Rule Breached


The claimant boarded a city bus in Vancouver that accelerated suddenly causing her to lose her balance and fall. She sued, without a personal injury lawyer, and the trial judge dismissed her claim.
The bus company cross examined the claimant using surveillance video in a subsequent bus incident to impeach her credibility claiming it was a false complaint. On appeal, she hired a lawyer, and they successfully argued the judge erred in admitting evidence collateral to the incident at issue and misapprehended that evidence.  A new trial was ordered.(Dahl v. South Coast British Columbia Transportation Authority,2018 BCCA 184)
The law of evidence can be used to impair or strengthen a personal injury case. Ultimately the purpose is to ensure only relevant, reliable and required evidence is considered in the determination of the case. The collateral fact rule’s object is to avoid prolonged evidence on numerous subsidiary issues.

Breach of the Collateral Fact Rule 

The Court of Appeal accepted the following statement as an accurate description of the collateral fact rule in British Columbia:

[14]  The collateral fact rule was summarized in Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 4th ed.:

§16.223  There is a general rule that answers given by a witness to questions put to him or her on cross-examination concerning collateral facts are treated as final, and cannot be contradicted by extrinsic evidence. Without such a rule, there is the danger that litigation will be otherwise prolonged and become sidetracked and involved in numerous subsidiary issues. The rule does permit the use of extrinsic evidence to contradict a witness who has made a statement in cross-examination which is relevant to the substantive issue. However, with respect to questions which are directed solely to impeaching a witness’ credibility, the answers must, save for certain common law and exceptions, be accepted as final. McIntyre J., in Krause v. R., described collateral matters as being “not determinative of an issue arising in the pleadings or indictment or not relevant to matters which must be proved for the determination of the case”. Difficulties have arisen, however, because of uncertainty as to whether a question merely goes to a collateral issue or whether it goes to a substantive one. Pollock C.B. attempted to articulate the distinction in Attorney General v. Hitchcock, as follows:

… the test, whether the matter is collateral or not, is this: if the answer of a witness is a matter which you would be allowed on your part to prove in evidence – if it have such a connection with the issue, that you would be allowed to give it in evidence – then it is a matter on which you may contradict him.

For claimant’s, a lesson from this case – get a personal injury lawyer at the beginning of a case to avoid problems at the end of the case.

For lawyers, remember that questions put on cross-examination concerning collateral facts are treated as final, and cannot be contradicted by extrinsic evidence used to impeach a claimant’s credibility.

Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

Tags: Collateral Fact Rule, credibility, Rules of Evidence, witnesses

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