Posted: October 21, 2015
By: Steve Rastin

When can a statement uttered in a private conversation be used as evidence against you in a court of law and when is it simply a private conversation and therefore inadmissible? This is the key issue that confronted Justice Timothy Ray in Cormack v. Chalmers.

Rumiana Cormack, the plaintiff, was badly injured after she was hit by a motorboat while swimming near a harbor entrance, at the end of a dock. At the time, Ms. Cormack had been a guest at the home of Shannon Pitt and Erik Rubadeau, the defendants, who lived near the harbor. After the accident, Ms. Cormack believed that the defendants had been negligent in not informing her about the hazards of swimming at the end of the dock. She also filed suit against Mr. Benjamin Chalmers, who was the owner of the boat and had been driving it at the time of the accident.

Before the trial commenced, counsel for the plaintiff and defendants sought a ruling from Justice Ray in regards to a witness the plaintiff’s counsel wanted to call to testify during the trial. According to Ms. Cormack’s claim, the witness in question was going to testify that Ms. Pitt and Mr. Rubadeau, during a private conversation, stated that they knew swimming at the end of the dock was dangerous. However, Ms. Pitt and Mr. Rubadeau’s counsel argued that the comment was made during what was clearly an apology and per the Apology Act, that meant the statement was inadmissible.

The law defines an apology as “an expression of sympathy or regret, a statement that a person is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit fault or liability or imply an admission of fault or liability in connection with the matter to which the words or actions relate.”

Justice Ray in his decision referenced Simei v. Hannaford, where Master Short noted the importance of the Apology Act, which he believed exists to allow individuals the right to express sympathy or care for another, without having to worry whether or not that spur of the moment comment may be used against them at a later date. He also referred to Robinson v. Cragg regarding  the issue of an apology that accompanied an admittance of guilt in the same statement. In this latter case, it was held that the entire statement should be redacted as it is unfairly prejudicial to include statements that are combined with an expression of sympathy.

Justice Ray eventually concluded that while any words said during an apology, as defined by the Apology Act are inadmissible, the real question of the case was whether or not an admission intertwined in an apology could be admissible. As Justice Ray put it, the exact wording of the statement in question conveyed two separate thoughts or messages – one was a statement of regret and the other was a statement of fact.

According to Ms. Cormack’s will-say statement, Ms. Pitt, one of the defendants, told another party (Asen) that she was sorry and unable to forgive herself.  She added that she was in the habit of warning people not to swim behind the dock and had, in fact, warned her father of this same danger.  Ms. Pitt also expressed regret for not telling the plaintiff, Ms. Cormack of the danger.

Justice Ray therefore concluded that while Ms. Pitt’s statement that she was sorry and could not forgive herself was indeed an apology and thus inadmissible, stating that the she always tells people not to swim behind the dock was not an apology and therefore was admissible.

Justice Ray ruled that a redacted form of the statement was admissible. Ms. Pitt’s words expressing how sorry she was about Ms. Cormack’s accident would be removed, thereby abiding by the rules of the Apology Act.  However, to be admitted as evidence would be Ms. Pitt’s statement that she makes it a habit to warn people, including her father, to not go swimming there.

This case is indicative of the complexities in interpretation of the Apology Act. It is also a warning for anyone involved in a potentially negligent act to discuss as little as possible about the circumstances of the accident with anyone.  In many instances, casual remarks that are shared in the aftermath of an accident may hurt your case when accepted as evidence in court.  

If you or a loved one was a victim of negligence resulting in injury, it is in your best interests to contact a personal injury lawyer as soon as possible.  A skilled lawyer can give you a realistic assessment of the strength of your claim and can begin gathering evidence for your suit before the passing of time makes witness statements and other valuable evidence difficult to acquire.  At Rastin & Associates we specialize in civil (‘tort’) law and have many years of experience in settling successful claims for our clients.  Call us today to schedule a free consulation.

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