Posted: October 18, 2016
By: Steve Rastin

Jacqueline Vickers was struck from behind by the side mirror of a car that was attempting to overtake her, while she was riding her bicycle at the side of a road. Ms. Vickers asserted that as a result of the impact, she fell and struck her head, and was later diagnosed with a compression fracture of her T-11 vertebra.  In Vickers v. Palacious, she sued the defendant driver, Ferrando Palacious, alleging that her injury precluded her from pursuing her career as a pastry chef and she is debilitated by chronic pain.  The jury awarded the plaintiff $563,800 in damages. However, before the trial was concluded, two significant issues and subsequent rulings by the judge affected the evidence that was allowed on behalf of the defence.

The first issue was in regard to the testimony of two radiologists with whom the plaintiff consulted prior to the trial, in relation to her injury. Although the plaintiff filed the two radiologists’ reports as part of her case, these experts were not called to testify when plaintiff’s counsel presented her case at trial. The defendant also did not request the presence of the radiologists either before or during the trial.

However, after the plaintiff’s counsel rested their case, defence counsel requested a motion to allow them to cross-examine the radiologists, claiming that it was their right to do so because the radiologists were witnesses for the plaintiff.  Defence counsel further argued that it is more appropriate to question the radiologists by cross-examination rather than by examination in chief (which is generally used for calling individuals that support a particular side’s argument).

The judge disagreed with defence counsel’s argument, noting that they made no request for the two radiologists to be presented for cross examination before the plaintiff closed her case. There was no discussion, approval or leave given for cross-examination to take place at that point, by the defence. Therefore, the judge ruled that defence could call the two radiologists but they would be treated as witnesses for the defence. The judge referenced the ruling in Harris v. Windsor Airline Limousine Services Ltd., where the judge noted, “Where the plaintiff wishes to file a medical report and the defendant wishes to cross-examine the physician who made it, the physician should be called as part of the Plaintiff’s case.”

The second issue that arose during the trial concerned video surveillance evidence. The defendant initially conducted video surveillance on the plaintiff for three days in November 2013 and again in June, July and August of 2015.  The existence of surveillance evidence was not disclosed during the pretrial conference in March 2014, nor did defence counsel disclose this evidence in the Affidavit of Documents. It wasn’t until September 2015, two weeks before the beginning of the trial, that the existence of the video surveillance was finally revealed by defence counsel and a copy of the video was provided.

During the trial, counsel for the defence attempted to introduce the surveillance evidence after cross-examining the plaintiff, to which the plaintiff objected. Justice James sided with the plaintiff and deemed the surveillance evidence inadmissible. He referenced the decision in Landolfi v. Fargione, where the Court of Appeal was critical of the trial judge’s decision to exclude surveillance evidence when the defendant had in fact disclosed the particulars of the surveillance before trial and in a timely manner. Justice James referenced the Landolfi decision to point out that in Vickers, the reverse was true (i.e. the defendant did not disclose the existence of the surveillance in a timely manner).

The judge also referenced Iannarella v. Corbett, where the Court emphasized the trial judge’s role as a gatekeeper and stressed that the Court must be satisfied, even when a video is being used for impeachment purposes alone, that it be fair and accurate. This, the Court stressed, requires that the videographers of said videos be available on voir dice ( i.e. through a preliminary examination by a judge or counsel). Justice James noted that this had not been done in the current case and as a result, he could not be certain that the entire, unedited video had been presented to the plaintiff.

The judge stated two additional reasons why he ruled in the plaintiff’s favour and excluded the video. One, he was not satisfied that the video showed the plaintiff engaging in any activity that contradicted her testimony. Two, it was pointed out that defence counsel offered no convincing explanation for their failure to comply with the disclosure obligations. As a result, the judge ruled that the video surveillance evidence be excluded from the trial.

Successfully filing a personal injury claim is sometimes a complicated process and certainly, all evidence must be filed and presented in accordance with legal requirements. Having the assistance of a skilled and experienced personal injury lawyer helps ensure that the gathering and presentation of evidence, particularly credible and professional medical expert testimony, facilitates a convincing and strong case on your behalf.  At Rastin & Associates, our team has successfully represented many car accident victims and their families in obtaining favourable compensation for their injuries and associated losses.  If you or someone you love was injured as a result of an accident caused by another person’s negligence, please do not hesitate to contact our office today for a no-obligation consultation.


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Posted under Car Accidents, Injury Case Preparation, Personal Injury