Experienced lawyers know that human memory and understanding are very fragile and that recollections tend to fade over time. While the novice attorney may be focused on what he or she thinks is the one correct version of the facts, the veteran knows that understanding, interpretation and even simple recollection often vary between people who have witnessed the same event. This can create contradictory and conflicting reports from even the best-intentioned witnesses. In order to reduce the risk of error, there are special rules in place that govern how evidence is treated at trial.
Most witnesses who testify in court are ‘fact witnesses’. They are there to tell the court what they did, saw or heard. They cannot go beyond this and give their interpretation, or opinion, about what the facts mean. So a fact witness can testify that he saw the car going very fast and the bang of the impact was very loud and the airbag did not deploy. However, he cannot draw the conclusion from the speed and force of the impact that the airbag should have deployed and that it was defective. This is opinion evidence that must be given by an appropriately qualified expert. The judge decides who is an expert and there are very specific rules and conditions that must be met before an expert is allowed to give an opinion.
Because of a rising concern about the use of ‘hired gun’ experts our court rules were amended in 2010 and now set out the duty of experts and require certain information to be provided in advance before an expert can testify. However, the rules have created confusion, particularly with respect to whether they apply only to experts hired to give evidence in the litigation or whether treating doctors also have to comply with the rules before they will be allowed to give evidence. This is a very important issue because the persons with the most knowledge of a matter are usually the treating doctors and their opinions can make a huge difference in the ultimate recovery.
Thankfully the Ontario Court of Appeal has now made it easier for treating physicians to give opinion evidence. In Esterhof v. Gee Estates the court considered two appeals. In the first the trial judge had not allowed treating doctors to give opinion evidence and the jury had awarded under $50,000. In the other case the treating doctors were allowed to give opinion evidence and the jury awarded over $700,000. The Court of Appeal has now clarified that the new rules apply only to ‘hired guns’ and not to treating doctors, making it easier for car accident victims to call treating doctors as expert witnesses. This can make a significant difference in the amount of damages awarded at trial.
If you are an accident victim you need lawyers who understand which witnesses are going to help maximize your recovery and when you need to hire outside experts. We have this experience and can ensure that the best evidence is put forward on your behalf. Give us a call at 416-800-4378.