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Expert Evidence

Published in the May 2009 issue of Transportation Notes - View Article

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On April 17, 2009, the Supreme Court of British Columbia released a decision that sheds some light on the issue of when a litigant may lead expert evidence at trial on the standard of care to be met by a driver of a motor vehicle. The facts of the case are straightforward. Ms. MacEachern was walking or riding her bicycle along a highway when she was struck in the head by a large tractor trailer owned by Canadian National Transportation (“CN”) and driven by the defendant, Rennie. She was seriously injured. Both CN and Rennie denied liability.

The plaintiff sought to call an expert at trial to give expert evidence on: (i) the standard of care applicable to a professional tractor trailer driver; (ii) whether Rennie fell below that standard; and (iii) the driving characteristics of large tractor trailers.

In making its decision, the Court noted the test for admitting expert evidence at trial, as laid down by the Supreme Court of Canada in R. v. Mohan. In that case, the Court held that such testimony is admissible when (a) it is relevant; (b) it is necessary to assist the trier of fact; (c) there is no other exclusionary rule that applies to that evidence; and (d) the expert is properly qualified.

The Court found that portions (a), (c) and (d) of the Mohan test clearly applied in the matter at hand, but that there was an issue as to whether evidence from the expert was “necessary”. Justice Ehrcke reviewed other jurisprudence where Courts had determined that “necessary” means something more than “helpful” and was more akin to evidence “which is likely be outside the experience and knowledge of a judge or jury”. The purpose of having such a threshold is to avoid situations where the judge’s decision-making power ends up in the hands of experts hired by the parties.

The Court considered a number of precedents involving motor vehicle accidents in various contexts where the parties sought to introduce evidence from driving instructors and settled on a distinction between those cases where the average person would have personal experience (such as cases involving the operation of an automobile) and cases involving more complex vehicles, such as large transport trucks and other heavy vehicles which were not widely operated by the public and, in fact, required special types of licences to operate.

Noting this distinction, Justice Ehrcke allowed the evidence to be introduced, with the proviso that he would determine, at the end of trial, the amount of weight to be given to it.

MacEachern v. Rennie
2009 BCSC 585 (Can LII)