Case Name:

Rodger v. Strop

Between
Niel Rodger and Christina Rodger, Plaintiffs, and
Blanche Strop and James Richard Strop, Defendant

[1992] O.J. No. 2769
Action No. SC 2715/88

Also reported at:
42 M.V.R. (2d) 174

Ontario Court of Justice - General Division
Windsor, Ontario
L.R. Morin J.

December 4, 1992
(8 pp.)

Torts - Personal injuries - Motor vehicle accident - Liability - Damages - Employment losses - Assessment - Evidence - Admissibility - Videotape of plaintiff taken six years after accident - Photographs of the vehicle and motorcycle involved in the accident - Prejudice.

The plaintiff sued for damages resulting from a collision involving a motorcycle and a motor vehicle. The accident occurred six years earlier. The plaintiff sustained serious personal injuries and he claimed that he had not been able to work and would not able to work in future. The defendant denied liability and challenged the measure of damages claimed. In this application, the defendant sought to introduce video film of the plaintiff taken six years and two months after the accident and also photographs of the motorcycle and the motor vehicle involved in the accident.

HELD: The videotape and the photographs were admissible and would be admitted subject to proper proof as set out in the test in R. v. Creemer and Cormier.

Myron Shulgan and Harry Drummond, for the Plaintiffs.
Paul Ledroit, for the Defendant.

L.R. MORIN J.:-

THE PARTIES

The plaintiff sues for damages resulting from a motorcycle - motor vehicle collision. The accident occurred six years ago. The plaintiff sustained serious personal injuries and his position is that as a result of the injuries he received in the accident, he has not since then, nor can he in the future be employed.

The defendant has denied liability for the accident. Also, the defendant claims the Plaintiff's injuries, although admittedly serious, have not rendered him totally unemployable. The trial is before a jury.

NATURE OF THE PROCEEDING

Prior to the trial commencing before the jury a voir dire was head. The issues in the voir dire are two. They are:

1. whether a video film of the plaintiff taken of him six years and two months after the accident, is admissible; and


2. whether photographs of the motorcycle and motor vehicle involved in the accident are admissible.

The plaintiffs submits the video and photographs are to be excluded because to admit either or both would be far more prejudicial than would be the probative value.

HISTORICAL BACKGROUND AND FACTS

The evidence before me as to the filming of the video is the investigator simply on the days in which he made his surveillance of the plaintiff, filmed what he saw the plaintiff doing. There is no evidence, nor is there a, suggestion the film produced was slowed or fast forwarded. The reproduction is what the investigator observed of the plaintiff. There are breaks in the film, and the investigator explained the breaks are because he stopped filming when the plaintiff went out of sight. There are three instances when the investigator explained he did not film the plaintiff over the two day period. The reason given is he was not in a position to film the plaintiff, and therefore he did not do so. The investigator did not attempt to be selective of what he filmed, he simply filmed what he observed the plaintiff was doing on those two days, nothing more, nothing less. when viewing the film of the plaintiff walking, the film does move up and done. The investigator explains that while he was filming his position was difficult for him to hold and therefore he could not hold the camera steady. The plaintiff did not testify on the voir dire.

The still photographs are pictures of the plaintiff's motorcycle and the defendant's motor vehicle taken after the collision. The pictures are taken in a storage area where vehicles have damage or otherwise are kept. The defendant seeks to introduce the photographs for several purposes. Those purposes include point of impact on the motorcycle, point of impact on the motor vehicle, the extent of damage on each vehicle, and accordingly the force of collision, the movement of the motorcycle and the motor vehicle and speed of the motorcycle. The plaintiff submits the photographs are highly prejudicial and accordingly outweighs the probative value. He submits if the photographs are admitted, a conclusion may be drawn as to speed based on damage alone, that such conclusions can only be drawn by reference to an expert who will consider point of impact on the vehicles, the point of impact in the intersection, the composition of the material of each vehicle, the composition of the road surface to name but a few.

Extensive examination and cross-examinations was made of an orthopaedic surgeon and a physiotherapist who had previously examined the plaintiff and they respectively formed certain opinions of the plaintiff's condition. They each concluded after personally examining and testing the plaintiff he was suffering from chronic pain syndrome, that he was employable but with restrictions. After viewing the film their opinion changed to the extent that the restrictions which they had concluded the plaintiff would have for employment were no longer as severe, and though he would still have restrictions, he would have more employment opportunity.

THE LAW

The test to be applied in considering the admission of videotape and photographs is the same. What is the trial judge to consider in exercising his or her discretion? The question is answered in R. v. Careemer and Cormie (1968) 1 C.C.C. 14 (N.S.S.C. Alp. Div.) by McKinnon J. as follows:

All cases dealing with the admissibility of photographs go to show that such admissibility depends on (1) their accuracy in truly representing the facts; (2) their fairness and absence of any intention to mislead; (3) their verification on oath by a person capable to do so.

This passage was adopted by Le Sage Co. Ct. J. (as he then was) in R. v. Maloney (No. 2) 29 C.C. C. (2d) 431 at 433. This test was adopted by Spence J. in Draper v. Jacklyn et al., [1970] S.C.R. 92 at pg 100.

In applying this test to the evidence before me in relation to the video, I am satisfied the evidence of the investigator satisfies all three requirements. I accept his evidence. In regard to the photographs as to the damage to the motorcycle and the motor vehicle so long as someone testifies the photographs accurately and truly represent the damage; the photographs are fair and are not taken for the purposes of misleading the trier of fact, and the witness attests to each of these factors, then such photographs would be admissible.

Martland J. in R. v. Wray [1971] S.C.R. 272 at pg. 293 said:

The allowance of admissible evidence relevant to the issue before the court and of substantial probative value may operate unfortunately for the accused, but not unfairly. (In this case, replace the word accused with plaintiff.)

In my view, the same can be said for a plaintiff seeking damages for personal injury, where there is a dispute as to liability, and/or some form of income loss, past and/or present. Le Sage, J. in R. v. Maloney #2, supra, at pg. 437 put it this way:

... in considering what is true and accurate one must consider the issues at trial and be satisfied that the evidence proffered is true and accurate in relation to those issues.

In Draper v. Jacklyn, 9 D.L.R. (3rd) 264 at pg. 270 Spence J. italicized a passage of Lord du Parck in Noor Mohamed v. The King, (1949) A.C. 182 at pg. 192 as follows:

This decision must then be left to the discretion and sense of fairness of the judge.

In my view, the question the court must consider as to the tendered evidence is whether the evidence is relevant, and whether it is necessary. If the answer to the questions is yes, then the evidence is to be admitted. To do otherwise would be unfair in this case, not only to the defendant but also to the trier of fact. As it has been said, the video provides an objectivity that the oral evidence cannot provide. One witness explained it as like trying to describe Niagra Falls, as compared to seeing a picture or seeing it in person. Similarly, if one cannot see it in person surely the next best thing is a video and if not a video, a still picture. The physiotherapist put it this way, "A picture is worth a 1000 words." This is particularly so if the picture or video meet the test in Creemer and Cormier.

Once the evidence is admitted, it is subject to what weight shall be attributed to the tendered evidence. There may be little weight or a great deal. It is submitted on behalf of the plaintiff the video should not be admitted as it does not fairly show grimacing, level of discomfort or limping. For me to Say there was such evidence is asking the court to speculate. If no such evidence is displayed on the video then it is possible for the trier of fact to conclude there was none. The trier of fact need not do so, it may do so. It is a matter of weight.

This leaves one picture to consider. It is a photograph of what the defendant would have seen of the intersection while in the process of making a left hand turn. If the photograph satisfies the test as set out above, then it should be admitted.

CONCLUSION

The videotape, the photographs of the damage to the motorcycle and motor vehicle, and the photograph of what the defendant's view was of the intersection shall be admitted into evidence, subject to proper proof as set out in the test in R. v. Creemer and Cormier, supra.

L.R. MORIN J.
DRS/DRS/DRS/DRS