The Use of Vehicle Damage Evidence in Low Speed Collisions - Ismail v. Fleming, 2018 ONSC 6311 (CanLII)

January 09, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

The Use of Vehicle Damage Evidence in Low Speed Collisions  - Ismail v. Fleming, 2018 ONSC 6311 (CanLII)

Date of Decision: October 22, 2018
Heard Before: Justice I.F. Leach

PLAINTIFF’S MOTION TO EXCLUDE VEHICLE DAMAGE EVIDENCE: a question of causation; probative value of evidence; prejudicial impact of introducing evidence of trivial impact; there were no meaningful concerns that the evidence in question would present anything in a biased, misleading or unreliable manner to undermine the plaintiff’s position in this litigation; low speed injuries

This motion arises from a 2009 car accident that is currently subject of a civil jury trial.

The car accident occurred when the defendants’ vehicle made a left turn across the path of the plaintiff’s vehicle.  The two vehicles collided “in a T-bone fashion”, with the front of the plaintiff’s vehicle colliding with the side of the defendants’ vehicle. Extensive vehicle damage evidence was produced and exchanged at discovery including repair bills.

On August 19, 2016, the defendants served a formal Request to Admit asking, inter alia, that the plaintiff admit the authenticity of the aforesaid photographs and damage repair estimates.The plaintiff served a formal Response and admitted the authenticity of the photographs and damage repair estimates.  On the same day, defence counsel wrote to plaintiff counsel, confirming that liability for the underlying accident had been admitted in exchange for the plaintiff confining the quantum of all her claims to the policy limits of automobile third party liability insurance available to the defendants.

On September 23, 2016, plaintiff counsel served defence counsel with a Notice of Intention attaching two schedules, (“Schedule A” and “Schedule B”), outlining the documents the plaintiff intended to introduce into evidence at trial.  Schedule “B” included, under the sub-heading “LIABILITY”, the photographs and damage repair estimates outlined above. On September 28, 2016, plaintiff counsel also served defence counsel with a copy of a “Plaintiff’s Photographs Brief”, which contained 2 photos of the intersection where the underlying accident took place, and 14 colour photos of the plaintiff’s vehicle taken after the accident.

Before making my above ruling dismissing the plaintiff’s motion I considered the parties’ respective arguments in their entirety and included the following:

1. It was submitted that the photographic evidence of damage to the plaintiff’s vehicle was unnecessary, and/or had little or no relevance or probative value.  In that regard:
   1. It was emphasized that liability for the underlying accident has been admitted by the defendants, and that property damage forms no part of the plaintiff’s claim.  It therefore was argued that, in the result, the trial accordingly would be focused on assessment of the plaintiff’s personal injury damages.
   2. Treating experts and health care practitioners were said to have diagnosed and provided treatment for the plaintiff’s condition since 2009 without reference to the vehicle damage documentation.
   3. It was said that a number of experts testifying at trial would agree “that the plaintiff suffered soft tissue injuries in the subject accident and that those injuries have evolved into a chronic pain syndrome with both physical and psychological symptoms that impair proper functioning”.
   4. Plaintiff counsel were of the view that plaintiff and defence litigation experts had formulated their opinions without reference to vehicle damage documentation.  In that regard:
      1. It was conceded that at least two of the defence medical experts had been provided with vehicle damage documentation, including photographs of the plaintiff’s vehicle and the damage repair estimate and invoice documentation noted above.  However, it also was emphasized that neither of those experts had made any express reference to evidence of vehicle damage in the document review or opinion sections of their respective reports.
      2. In relation to the report prepared by neurologist which included references to the vehicles in the underlying accident history colliding “at very low velocity”, such that “the accident was minor/trivial”, it was suggested the doctor may not have been provided with the vehicle damage evidence noted above, and/or relied upon it in arriving at the conclusions or opinion that will be the subject of his testimony at trial.
      3. It was emphasized that, as indicated in his report, the plaintiff’s litigation expert would provide testimony addressing the relationship between the nature of the underlying accident and resulting soft-tissue injuries, emphasizing that significant soft tissue injuries may result from low velocity collisions.
   5. Relying on American authority and certain decisions from the Supreme Court of British Columbia, plaintiff counsel argued that, insofar as it might have any bearing on the plaintiff’s personal injury damages, vehicle damage evidence should be inadmissible in any event without the tendering of a supporting expert accident reconstruction report or biomechanical engineering report to support any possible correlation between forces occurring during the accident and the severity of injuries sustained by the plaintiff.  It was said that any possible inferences in that regard otherwise should be impermissible as a matter of law, insofar as they would amount to “unguided speculation”.  More generally, it was said that the law has rejected and/or should reject the view that “no vehicle damage means no injury”, and/or that “minor vehicle damage means minor injury”.
   6. In any event, it was said that the photographs the defendants’ sought to introduce were of limited assistance, insofar as they were said to be of poor quality and failed to clearly show the full extent of damage to the plaintiff’s vehicle, and there were no photographs of damage to the defendants’ vehicle to be considered as well.

1. It was submitted that any relevance or probative value of vehicle damage evidence was far outweighed by its potential prejudicial impact.  In that regard:
   1. It was said that admission of vehicle damage evidence would encourage the jury to engage in “prohibited reasoning”, contrary to the admonitions in that regard by our Court of Appeal in authorities such as Brochu v. Pond, 2002 CanLII 20883 (ON CA), [2002] O.J. No. 4882 (C.A.), at paragraphs 15-16, and Landolfi v. Fargione, 2006 CanLII 9692 (ON CA), [2006] O.J. No. 1226 (C.A.), at paragraph 78.  In particular, it was argued:
      1. that consideration of such “irrelevant” and “extraneous” evidence inappropriately would divert the jury’s attention away from its “true task” of objectively evaluating and assessing the plaintiff’s injury, impairment and loss;
      2. that jurors inappropriately would engage in speculation if evidence of vehicle damage was admitted without qualified expert evidence to establish a relationship between the extent of vehicle damage and the nature of resulting injury;
      3.  that consideration of the vehicle damage evidence in this case would be “inflammatory”, in that photographs depicting “little actual vehicle damage” were said to “appeal to the emotions of the jurors” by suggesting a “common sense inference that minor vehicle damage equals minor injury and minor loss”; and
      4. that jurors might base their assessment of the plaintiff’s claims on assessment of visible vehicle damage rather than medical and other evidence relating to the plaintiff’s injuries and their impact on the plaintiff’s functioning, with corresponding “prejudicial impact” on the jury’s assessment of the credibility of the plaintiff and her witnesses, and the plaintiff’s claims.
   2. It was argued that the prejudicial impact of admitting evidence of modest vehicle damage evidence on jury assessment of plaintiff personal injury claims has been demonstrated by a number of reported Superior Court “threshold” decisions; i.e., cases wherein juries were said to have awarded relatively modest levels of monetary compensation to plaintiffs involved in low impact collisions resulting in minimal vehicle damage, but trial judges had found or opined -- in the context of making or declining to make formal “threshold” decisions, pursuant to s.267.5(5) of the Insurance Act, R.S.O. 1990, c.I.8 – that the plaintiffs in those cases actually had suffered permanent serious impairment of an important physical, mental or psychological function as a result of the underlying accidents, and/or otherwise had been subjected to an unjust result.

Points and arguments raised by the defendants, in opposition to the exclusionary order requested by the plaintiff, included the following:

1. It was suggested that, through her counsel’s service of a Notice of Intention referring to the photographs and “Photographs Brief” after September 16, 2016, the plaintiff implicitly had acknowledged and accepted that such vehicle damage evidence remained relevant and admissible even after liability was no longer in issue. 
2. It was said that the photographs of vehicle damage had relevance and probative value in any event.  In particular:
   1. It was emphasized that such evidence properly formed part of the total available evidence to be considered by the trier, in determining what losses of the plaintiff might be attributable to the underlying accident.
   2. It was emphasized that the plaintiff herself was expected to testify about the circumstances of the underlying accident, in support of her claim that the accident led to her alleged current condition and losses.
   3. The defendants fully acknowledged, and were willing to stipulate, that a low impact motor vehicle accident did not negate the possibility of resulting serious injury.  However, relying on decisions of the Supreme Court of British Columbia, (contradicting those relied upon by the plaintiff), as well as a degree of Ontario authority, the defendants submitted:
3. that photographs showing the extent of damage to vehicles involved in an accident still were relevant and admissible as a matter of common sense and common understanding that there was a relationship between the extent of force and damage inflicted on an automobile and the extent to which a vehicle’s occupants were likely to be injured; and
4. that expert biomechanical or similar expert opinion was not a precondition to the admission of such evidence.

1. It was emphasized that, according to the plaintiff’s motion material, plaintiff counsel submissions and reports served pursuant to Rule 53.03, the anticipated testimony of at least one plaintiff litigation expert, (i.e., Dr Ogilvie-Harris), would comment on the relationship between low velocity motor vehicle accidents and significant soft tissue damage, including reliance on a specified publication entitled “Review of the Literature Refuting the Concept of Minor Impact Soft Tissue Injury”.  Defence counsel argued that, in circumstances where the plaintiff’s litigation expert was going to opine that the trauma of the underlying motor vehicle accident was sufficient to cause the level of impairment currently alleged by the plaintiff, basic fairness required that the jury be permitted to consider evidence relevant to providing a more complete and accurate understanding of that underlying trauma.
2. For similar reasons, it was said that fairness required admission of the photographs because litigation experts retained by the defendant had indeed reviewed, considered and relied upon photographs of damage to the plaintiff’s vehicle, (along with the plaintiff’s account of the underlying motor vehicle accident), in forming their different opinions and conclusions regarding the extent of any plaintiff injuries or losses properly attributable to the accident.
3. The photographs were said to be objective, neutral and fair evidence that would assist the jury in forming a more precise and accurate understanding as to the nature and severity of the underlying motor vehicle accident, without being limited to abstract descriptions.  Moreover, having regard to the formal litigation steps taken by the plaintiff and her counsel, in relation to the photographs, it was submitted that the accuracy of what the photographs depicted implicitly had been acknowledged.

In response to plaintiff suggestions that admission of the photographs would have prejudicial impact:

1. The defendants denied that the photographs were “prejudicial”, in the sense of being inflammatory, or encouraging any juror decision based on emotion.  The photographs would not encourage resort to “prohibited reasoning”.  To the contrary, the photographs were relevant and probative for the “common sense” reasons noted above.   
2. In relation to the “threshold” decisions relied upon by plaintiff counsel, the defendants denied that any meaningful inferences or conclusions could be drawn about the extent, if any, to which evidence of vehicle damage in those cases was somehow prejudicial or decisive.  The defendants also questioned the propriety of characterizing the jury verdicts in those cases as being somehow “wrong” or unjust.
3. The defendants submitted that, if there was any concern about the jury mistakenly believing that serious injury from a low impact collision was not possible, the possibility of any such prejudice could be addressed by an appropriate judicial instruction; e.g., confirming that the existence of little or no damage to the plaintiff’s motor vehicle does not mean the plaintiff has not sustained a serious injury, and that such evidence must be considered in the context of the evidence as a whole.

Analysis

The decision to dismiss the plaintiff’s motion to exclude vehicle damage was the cumulative result of numerous considerations.

The suggestion by plaintiff counsel that admissibility of vehicle damage evidence requires demonstration of relevance and necessity was incorrect and had to be rejected.  In that regard:

•        Although consideration of necessity may be required in determining the admissibility of certain specific types of evidence, (e.g., hearsay evidence relating to out of court statements, tendered by a party relying on the principled hearsay exception established by numerous decisions of the Supreme Court of Canada)[6], demonstration that tendered evidence is necessary for a trier’s determination of a dispute is not a general requirement of admissibility.

•        The established general test for the admission of evidence a trial rests on relevance.  In particular, in both criminal and civil cases, prima facie relevant evidence is admissible, subject to a residual discretion of the trial judge to exclude evidence where its probative value is outweighed by its prejudicial effect.

Second such vehicle damage evidence has probative value and is admissible without the need for expert biomechanical evidence.   My reasons in that regard include the following:

1. As emphasized by plaintiff counsel, liability for the underlying accident and claims for recovery of property damage are not issues to be decided at trial, and the trial will focus in large measure on assessment of the plaintiff’s condition and losses.  In my view, however, plaintiff counsel downplays the equally important issue of causation, which remains very much in dispute according to the parties’ pleadings and the submissions I received.  In that regard:

1. It obviously is not sufficient for the plaintiff to establish to the jury’s satisfaction that she currently suffers from various conditions and disabilities that have resulted in certain losses and needs, such as lost enjoyment of life, loss of income, and the need for future care and housekeeping assistance.  The plaintiff must also establish to the jury’s satisfaction that such conditions and disabilities are attributable to the accident.
2. As emphasized by plaintiff counsel, the plaintiff intends to do so by advancing arguments “that the plaintiff suffered soft tissue injuries in the subject accident and that those injuries have evolved into a chronic pain syndrome with both physical and psychological symptoms”.  [Emphasis added.]  Recognition that the plaintiff may have sustained soft tissue injuries in the underlying accident accordingly is only one link in the suggested chain of causation.  Another very significant link is the question of whether any such original injuries were capable of “evolving” and did “evolve” into the conditions and disabilities now asserted by the plaintiff, and/or to the extent now asserted by the plaintiff.  In making that assessment, I think the trier logically is entitled to consider and assess the existence, nature and extent of original soft tissue injuries alleged by the plaintiff, and that evidence relating to such matters is inherently relevant to the issues in dispute in this trial.
3. In my view, recognition of that reality is implicit in the indications that the testimony of the plaintiff and at least one plaintiff litigation expert, (i.e., Dr Ogilvie-Harris), will address the circumstances of the underlying motor vehicle accident, the suggested connection between that accident and the extent of injuries said to have been sustained in that accident, (despite the apparently low velocity impact involved), and the manner in which original injuries of that extent were capable of transforming into chronic pain.
4. Not surprisingly, litigation experts retained by the defendants also apparently intend to address those suggested causal connections.  In my view, the lack of express reference to vehicle damage photographs in the substantive remarks and conclusions offered by those experts, in their respective Rule 53.03 reports, does not justify a conclusion that the photographs formed no part of the basis on which the experts formed their opinions and/or that the experts should not be permitted to speak of such matters.  The photographs unquestionably were supplied to the defence litigation experts and reviewed by them, the experts opine on causation, and it is well established that experts may explain and amplify the contents of their reports on matters that are latent in or touched on in the report.
5. In my view, the fact that treating physicians and other health care practitioners may have made diagnoses and formed treatment plans without reviewing vehicle damage evidence has little or no bearing on whether such evidence should be considered relevant and admissible at this trial.  The simple reality is that treating health care practitioners inherently are more focused on treating a patient’s reported complaints and conditions, without undertaking detailed or critical examination of whether a patient’s attribution of complaints and conditions to an accident may or may not be accurate.  To me, the implicit if not explicit suggestion that treating physicians or other health care practitioners would request or require a review of vehicle damage photos, before making diagnoses or providing treatment, seems absurd.  They simply do not focus on causation issues in the same manner as litigation experts.

I share the view, expressed in numerous decisions of the British Columbia Supreme Court that the extent of damage to motor vehicles involved in a collision has relevance and probative value, notwithstanding an admission of liability, where remaining issues such as causation and damage assessment make it so.  In particular:

• I agree that “it is a matter of common sense and common understanding that the greater the force with which two vehicles collide, the more likely it is that occupants of those vehicles will be injured”.
• In my view, that assertion, focused on probabilities, is in no way incompatible with recognition of possibilities; e.g., that some vehicle occupants fortunately escape serious personal injury despite involvement in high impact collisions resulting in extensive vehicle damage, and that some vehicle occupants unfortunately suffer very significant injuries despite involvement in lower impact collisions involving little or no damage.  As with any statistical distribution, the comparatively reduced probability of an “outlier” event occurring does not negate the very real possibility that it may well happen in some cases.  
• Not surprisingly, many cases therefore have recognized that serious injuries can indeed result from collisions involving little or no vehicle damage.  I agree that reality can and should be emphasized to a jury, along with salutary reminders that such vehicle damage forms only part of the total evidence, (including testimony from the plaintiff, treating health care providers and plaintiff litigation experts), that must be considered in making final determinations about causation and damages.  In particular, photographs of vehicle damage are but one piece of evidence that must be considered in the overall evidentiary context.
• However, as a matter of logic and fairness, recognizing the reality of such possibilities, despite their lower probability, should not prevent a litigant from relying on evidence capable of supporting arguments of lower probability.  I say “litigant” because, in my view, logic and fairness require such determinations of probative value to be made even-handedly. In this case the defendants argue that evidence of minor vehicle damage has probative value because it makes the possibility of serious personal injury without extensive vehicle damage less probable.  In other cases, however, a plaintiff legitimately might argue, (relying on the same common sense understanding of force noted above), that evidence of significant vehicle damage has probative value because it makes the possibility of extensive property damage without serious personal injury less probable.
• In most cases, (barring case-specific arguments that photographs have been altered or deliberately taken in a manner designed to overstate or downplay damages caused by a collision), photographs of vehicle damage will be neutral, unchanging and objective evidence capable of helping a trier form a more accurate understanding of the manner in which an accident occurred, and the corresponding forces on vehicles and vehicle occupants that may have been generated in the accident.[14]  In many cases, such evidence therefore arguably will have greater probative value than inherently subjective accounts and recollections of an accident, which may or may not be credible or reliable; e.g., having regard to such matters as the ability of those involved in an accident to make accurate observations while the accident is taking place, and/or the possibility of diminished memory with the passage of time.
• In some cases, it no doubt may be argued, (as it was in this case), that the quality of certain vehicle damage photographs is poor, and/or that the photographs do not exhaustively depict all of the vehicle damage that may have been sustained.   If such arguments have merit, that ultimately may reduce the probative value of such evidence.  In my view, however:
• such considerations can be highlighted by competing evidence, cross-examination and/or argument;
• such considerations effectively go to the weight such evidence should receive, as opposed to its relevance;
• matters of weight generally should be left to the jury to decide; and
• in this particular case, the manner in which the plaintiff herself approached the relevant photographs earlier in this litigation, (e.g., serving a formal Notice of Intention to rely on them a trial, and a “Plaintiffs’ Photographs Brief” confirming that intention), may make it difficult for the plaintiff and/or her counsel to deny that the photographs were accurate and meaningful depictions of what they appear to show.
• I certainly am mindful that a number of other decisions from the British Columbia Supreme Court, cited and relied upon by plaintiff counsel in this case, have taken a different approach; i.e., rejecting vehicle damage evidence, as inadmissible, in relation to determinations of causation and damage assessment.  In my view, however, closer examination of such cases suggests they should be approached with caution.   In that regard:  

British Columbia was the only Canadian jurisdiction in which plaintiff counsel could find reported decisions supporting the plaintiff’s position on this motion, and it seems that such decisions reflect a judicial reaction to a particular situation in British Columbia; i.e., the common and sole automobile insurer in that province, (the Insurance Corporation of British Columbia), apparently adopting and rigidly adhering to an internal policy which denies the existence of compensable personal injury damages in relation to accidents where there was no motor vehicle damage.

In my view, a strong negative judicial reaction to the ICBC’s apparent policy of “no physical damage – no injury” may be quite understandable, to the extent that such a policy fallaciously would use probability to deny possibility.  Again, many cases have recognized that it is quite possible for significant injuries to result from accidents involving little or no vehicle damage. 

In my view, it nevertheless is also fallacious to conclude that possibility negates the relevance of probability, (reflected in the common sense understanding that subjecting a vehicle and its occupants to increased force increases the likelihood of injury and vice versa), when it comes to a trier’s determination of whether significant injuries were caused by an accident involving little or no vehicle damage.  I think that is where the other British Columbia decisions I have identified and prefer effectively part ways with the decisions relied upon by the plaintiff.

I reject the view that expert biomechanical evidence or similar expert testimony is a precondition to the admission of vehicle damage evidence.  In that regard:

• It needs to be emphasized that vehicle damage evidence relates primarily to issues of causation, and that the Supreme Court of Canada repeatedly has emphasized:
• that causation is “essentially a practical question of fact which can best be answered by ordinary common sense”;
• that the relevant “but for” test for determining causation “is not to be applied too rigidly” but in a “robust common sense fashion”; and
• that scientific proof of causation is not required to satisfy the test as science may in fact not have the answers

In my view, it runs counter to those fundamental principles of the Canadian law of causation to suggest that a trier must be provided with expert scientific evidence as a precondition to considering evidence of damage resulting from a motor vehicle accident and the common sense understanding, noted above, that the likelihood of vehicle occupants being injured increases with the force at which two vehicles collide. 

In this case, plaintiff counsel relied heavily and primarily on American authority to argue that any suggested correlation between damage to vehicles and serious personal injury was “within the knowledge of experts only and not within the common knowledge of laymen”, such that any and all evidence and argument in that regard was impermissible without “competent expert testimony” sufficient to prevent “unguided empirical assumptions” and speculation.[19]  In my view, our courts should be extremely wary of importing such pronouncements into our law, when the American courts in question may very well approach causation in a manner that is fundamentally different to the approach mandated by the Supreme Court of Canada, especially insofar as the need for scientific proof of causation is concerned.

To the extent plaintiff counsel cited and relied upon authority from the British Columbia Supreme Court suggesting that some form of similar expert scientific testimony might be necessary as a precondition to the admission of vehicle damage evidence,[21] I respectfully disagree with the imposition of such a requirement for the reasons noted above; i.e., because I believe such an approach runs counter to the Supreme Court of Canada’s directions concerning the manner in which questions of causation are to be approached in this country.  I instead prefer to follow other decisions of the same British Columbia court, admitting evidence of vehicle damage without the necessity of biomechanical or other expert opinion.

Both plaintiff and defence counsel indicated their inability to locate any reported Ontario decision dealing with such issues, and suggested that my decision herein might be the first in that regard.[23]  However, defence counsel submitted that, despite the absence of a reported Ontario decision expressly addressing such matters, in practice the courts of Ontario accept that evidence relating to vehicle impact force may be relevant and probative to issues of causation, based on a common sense understanding that there is a correlation between velocity/impact and likelihood of injury, without the necessity of expert biomechanical or other scientific evidence.  The suggestion found some support in a provided transcript of an unreported voir dire decision delivered by Justice Garson in Hadzic v. Croxford, London Court file no. CV-10-00002304, on April 19, 2017.  In particular, at paragraph 20 of that unreported decision, Justice Garson said this:  “Although I accept that the complexities surrounding energy, force, acceleration and velocity may be outside the knowledge of ordinary people, it is likely not beyond the grasp of the ordinary juror that, the lower the speed or impact of a collision, the lower the likelihood of injury.”

Third, I am not persuaded that the vehicle damage photographs threaten any meaningful prejudice that would substantially outweigh their probative value.  In that regard:

• It must be remembered that “prejudice” in this context does not mean that the evidence a party seeks to tender, if admitted, may be detrimental to the other party’s position.  Rather, prejudice in this context relates to possible concerns about the detrimental effect that admission of certain evidence may have on the fairness and integrity of proceedings.
• This particular situation obviously involves no considerations of “moral prejudice”, in the sense described by the Supreme Court of Canada.  There is nothing about the photographs that suggests the plaintiff is a bad person, about whom negative inferences should be made.
• Nor does the proposed admission of that photographic evidence give rise to various concerns often associated with “reasoning prejudice”.  In particular:
  • There is no suggestion that presentation of the relevant photographic evidence will take anything but a minimal amount of time.
  • There is no suggestion that the photographic evidence in any way takes the plaintiff by surprise, or that her ability to address and respond to such evidence has been compromised.  In particular:

There apparently was no uncertainty or dispute as to the circumstances in which the photographs were taken.  Some were taken at the Collision Reporting Centre operated by the London Police, after the vehicle was taken there by the plaintiff in the wake of the underlying accident.  Others apparently were taken by the plaintiff’s own insurer. 

• As noted above, the photographs originally were obtained by the plaintiff, disclosed by the plaintiff to the defendants during the course of discovery, and incorporated by the plaintiff into a brief formally served on the defendants in preparation for trial.  All of that was done years before commencement of the current trial.
• In my view, there were no meaningful concerns that the evidence in question would present anything in a biased, misleading or unreliable manner to undermine the plaintiff’s position in this litigation. 

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