June 25, 2008 by Canadian Underwriter
Children’s evidence is not inherently any more or less reliable than an adult’s evidence when it comes to apportioning contributory negligence in a motor vehicle accident, Ontario’s Court of Appeal has upheld in Jones v. Niklaus.
The court thus applied the Supreme Court of Canada’s 1992 decision in R. v. W.(R.).
“The repeal of [legislative] provisions creating a legal requirement that children’s evidence be corroborated does not prevent a judge or a jury from treating a child’s evidence with caution where such caution is merited in the circumstances of the case,” the Ontario Court of Appeal quoted the Supreme Court of Canada as writing in R. v. W.(R.). “But it does revoke the assumption formally applied to all evidence of children, often unjustly, that children’s evidence is always less reliable than the evidence of adults.”
In Jones v. Niklaus, Carol Jones and her son Charles, 16 at the time, were driving down a paved country road with an 80 km-h speed limit. The car hit a dog and Jones lost control of the car, which hit a tree. Jones was severely injured, including a broken leg.
On the basis of the testimony of two children playing in the front yard of a house adjacent to the accident, a jury found Walter Niklaus, the owner of the dog, 35% responsible for Jones’ damages and Jones 65% responsible for her loss.
Jones appealed the jury’s finding that she was 65% at fault.
One of the children witnesses, Cassandra Niles, was nine years old when the accident happened (she was 17 at the time of the trial). The other, Johnny Niles, was 11 years old at the time of the accident and 18 years old at the time of trial.
Cassandra Niles gave a statement in February 2002, three-and-a-half years after the accident, that contradicted Jones’ testimony. She testified Jones was driving over the speed limit and seemed to notice the dog at the last minute and swerved.
Jones, on the other hand, testified she did not exceed the speed limit and the dog aggressively attacked her car, causing her to swerve.
Jones said the trial judge erred because the judge did not caution the jury about the reliability of children’s testimony.
The Appeal Court found the judge acted appropriately within the trial judge’s discretion. At any rate, the court added, counsel for Jones made the same point in an address to the jury.