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Lawyers’ Car Accident Re-enactment Inadmissible Says Judge

This pedestrian personal injury claimant alleged that the defendant negligently drove his vehicle over the back of her left ankle and foot while she stood outside a parkade talking with friends.

After the accident, the driver spoke with a representative of the Insurance Corporation of British Columbia, ICBC, by telephone a notes of this conversation with ICBC were found to be  inconsistent with his examination for discovery, and his evidence at trial.

Also, a part of defending the case, the defendant tried to rely on a re-enactment of the car accident. Rather than retain an accident re-constructionist to provide expert opinion evidence on the mechanics of the accident, the lawyer for the defendant attended the scene after-the-fact with the driver and an independent adjuster, and conducted his own analysis.

The judge declined to admit the report and had this to say,

[68]  Finally, counsel for the defendant participated in the re-enactment.  To cross-examine on the accuracy and/or reliability of the angles and positioning depicted in the photographs and video, he would potentially be subject to cross-examination.

[69] In the whole of these circumstances, I was of the view that admitting this evidence was highly problematic and declined to do so.  With reference to the factors discussed in both R. v. MacDonald and R. v. Collins, the prejudice that would flow from the admission of the evidence clearly outweighs its value.(Lensu v. Victorio,2019 BCSC 59)

The driver was found 75% at fault for hitting the pedestrian as he exited a parkade in downtown Vancouver. The following is a summary of the award in which the claimant received 75%:

Pain and Suffering for ankle, foot and low back injuries- $140,000.

 Loss of housekeeping capacity- $20,000

Future cost of care-  $107,375

Out of Pocket expenses-  $3,366.06

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

Tags: Crushed Ankle Injury, ICBC Statement

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