What Does it Mean to be a Credible Witness?

A recent judgment out of the Supreme Court of British Columbia by Mr. Justice Butler, sheds some more light on what makes a witness credible.

Ponsart v. Kong 2017 BCSC 1126, involved a claim for injuries arising out of three car accidents. Before assessing damages and compensation, Mr. Justice Butler was tasked with determining who was at fault for the first of the three accidents. Various witnesses in total testified as to how the accident happened.

Motor vehicle accident cases often go to trial well after the accident. In this case, the first accident was 5 years before trial. Recollection fades and memories become less reliable as time passes. In this case a variety of witnesses gave differing accounts. The plaintiff said she went through a yellow light as she could not stop in time and hit vehicle trying to complete a turn on a yellow light. The other driver claimed that he saw the plaintiff’s car slow down as it approached the yellow light and he believed it was safe for him to turn.

A witness travelling in the same direction claimed the defendant had entered the intersection on a yellow at a good speed. This witness was of the opinion that the defendant should not have completed his left turn.

Another witness was waiting at the red light. He claimed to see the defendant’s vehicle waiting to turn left and saw the light go yellow when the plaintiff was a few car lengths away from the intersection. He believed the light for the other way went green about a second after the accident.

Ultimately Mr. Justice Butler preferred the second witness:

“Of the witnesses to the accident, I found Mr. LeMay to be the most reliable. He is entirely impartial and, unlike the parties, his recollection would not have been affected by the trauma of the accident. Further, he had an excellent view of the collision as it developed and had a better vantage point than Mr. McCann. His evidence supports the plaintiff’s version of events. He said the defendant approached the intersection after the light turned yellow at a speed that would not allow him to stop. Given his proximity to the intersection and his ability to see the events develop, his assessment that it was not safe for Mr. Kong to turn carries much weight.”

He found that the plaintiff had the right of way and that the defendant was 100% at fault.

The defense took issue with the Plaintiff’s complaints about her injuries and argued that the plaintiff was inaccurate in reporting her history and symptoms to her doctors and gave inconsistent testimony.

Mr. Justice Butler had the following to say about credibility:

[26]         Credibility has two distinct meanings. A witness who testifies with a genuinely held intent to tell the truth is credible in the sense that she is honest; she is attempting to give truthful evidence. A witness is also said to be credible if her evidence is reliable. As I will explain, I have no hesitation in concluding that the plaintiff was an honest witness. She attempted to tell the truth about the motor vehicle accidents, her work experience, and the nature and extent of the symptoms she has experienced from the injuries suffered in the accidents. She responded frankly and directly to all questions put to her, whether in direct or cross-examination. She did not attempt to minimize her ability to function and frankly described all of the activities she has participated in since the accidents. I also find that she did not consciously exaggerate her pain and other symptoms.

[27]         While Ms. Ponsart was attempting to be truthful, I conclude that her evidence is not entirely reliable. Like many witnesses, her personal perspective has influenced her recollection. Further, as often happens in a personal injury claim where years have gone by since the accident, at times she reconstructed past events to make sense of the progress of her symptoms and life events. In addition, the plaintiff’s perspective is somewhat clouded by her anxious nature. She remains highly concerned about her physical and emotional well-being. I conclude that any reconstruction was unintentional; she did not attempt to mislead. I have, of course, arrived at these conclusions based on my review of all of the evidence. I will provide further explanation for these conclusions by reference to the areas of evidence on which the defendants focused their criticism.

After considering the evidence, he concluded that although the plaintiff did not intentionally overstate or misstate her symptoms she tended to overstate the impact of her injuries and pain symptoms to the Court and was not completely consistent when describing the extent of her pain and associated difficulties.

Ultimately he awarded her $85,000 for pain and suffering, $19,696 for past income loss, $50,00 for future income loss and $2,750 for special damages.


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