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Court allows second-hand evidence in accident benefits case


March 18, 2008   by Canadian Underwriter


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An Ontario Superior Court judge has allowed hearsay medical and real estate evidence to be given at an accident benefits trial arising from an automobile accident because the victim has since moved to a foreign jurisdiction.
Hong v. Song arises from a 2002 motor vehicle accident in which Eugene Song was a passenger in a vehicle involved in a collision. Song suffered catastrophic injuries as a result.
Following the accident, Song’s family relocated to South Korea, where she receives medical care.
Song and her family were physically present in Ontario for the trial, during which time Song’s counsel called on a series of experts.
The defendants questioned the validity of three of the witnesses’ testimony. The witnesses, the defendants argued, formed their opinions based on hearsay evidence obtained through conversations with medical and real estate professionals living and working in South Korea.
The Ontario-based witnesses, all trained in Ontario, included a life-care planner, an accessibility contractor and a professor of health economics.
The life-care planner and accessibility contractor travelled to Song’s residence in Korea and interviewed her caregivers, doctors and local real-estate experts. Each worked with an interpreter to bridge the language divide. None of the Korean experts or doctors were called to the stand for cross-examination, Ontario Superior Court Justice John C. Moore wrote.
The third witness is a university professor who has extensively researched South Korea’s economy and whether or not its government would be able to maintain its healthcare obligations.
“If there is no evidence upon which the assumed fact may be determined by the jury, it may be that the opinion of the expert will not be heard,” Moore wrote. “If, however, the court is satisfied that there is some evidence before the court now, or that may come before the court through the evidence of the remaining witnesses at this trial, the court may allow the jury to hear the opinion of the expert.”
The judge concluded: “To the extent that facts must be assumed by an expert and proven on the basis of second-hand evidence, the court will hear submissions upon the relevance, admissibility and reliability of such facts before they can be stated to the witness.”


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