Indexed as:

McCutcheon v. Chrysler Canada Ltd.

Between
Larry Norman McCutcheon, plaintiff, and
Chrysler Canada Ltd./Chrysler Canada Ltee., Des Carpenter's
courtesy Chrysler Sales Limited, and 948359 Ontario Inc.,
c.o.b. as Des Carpenter's Courtesy Chrysler Sales, defendants

[1998] O.J. No. 5818

Ontario Court of Justice (General Division)
Barrie, Ontario
Shaughnessy J.

Heard: November 23 and 24, 1998.
Oral judgment: November 24, 1998.
(11 pp.)

Counsel:

R.G. Oatley and G. Brock, for the plaintiff, and
G.M. Zakaib, for the defendants.

1. SHAUGHNESSY J. (orally):- On the second day of this trial a Voir Dire has been conducted to determine the admissibility of a computer generated animated video detailing the premorbid and post accident gait of the Plaintiff, Dr. Larry McCutcheon. There appears to be some controversy as to the admissibility of such evidence. The obvious objection is that such evidence has the appearance of authenticity which may not exist.



2. Filed as exhibits on the voir dire are the computer video animation depicting the premorbid and post accident gait of the Plaintiff; a further VHS home video taken of the Plaintiff in or about the Spring of 1995 which was viewed but not used by the video animator; photographs of Larry McCutcheon pre and post accident which were viewed by the video animator and there was also filed as an exhibit the curriculum vitae of the video animator, as well as a further video made by the animator, Mr. Lenartowich, which details the Plaintiff walking to and fro, as well as on stairs and without his leg brace in a locked position, as well as in a locked position.



3. The computer generated video which the Plaintiff proposes to introduce details a computer humanoid figure which visually presents the gait of the Plaintiff before the accident, as well as after the accident. The scene changes at various times to show the bone structure of the legs and feet pre and post accident and also, at one point, shows an actual picture of the Plaintiff walking with his brace on. There are also on the screen split scene comparisons showing the humanoid in gaits pre and post accident.



4. The Plaintiff, Larry McCutcheon, and his wife, Marilyn, were called to give evidence on the voir dire. It was their evidence that the computer video was an accurate depiction of the Plaintiff's gait both before and after the accident. In particular the change of pace in his gait as well as a change in the positioning of his leg in order to enable the swing of his leg above the ground with the brace on is stated to be an accurate depiction on the video.



5. Mr. Brian Lenartowich, and I am sorry if I am mispronouncing his name, gave evidence on the voir dire. His curriculum vitae was filed as Exhibit #5 and he was qualified to give expert opinion evidence as a professional animator. While he has no medical training, his assignment was to provide animation of a gait, premorbid and post accident. His evidence was that he met with the Plaintiff and Dr. Anthony Newall to establish how a computer generated animation would illustrate the differences in the gait before and after the accident. The technical detail concerning the hardware and software used the 3D models employed in the animation are detailed in his report dated November 6, 1998, which was also filed as an exhibit. If I understand the submissions of Defence counsel he has really no serious objection concerning the technical aspects of the evidence and he accepted that the equipment and software used was what is described as the high end of the state of art for computer generated animation.



6. I want to say a word about the other videos that were produced under cross-examination of Mr. Lenartowich. The home video made in the Spring of 1995 was viewed by the court - it is of poor quality and depicts third parties at a party in someone's home. The video was dark and the Plaintiff comes into the picture walking for about two to three seconds and he has a decided limp. The other video shot by Mr. Lenartowich lasts approximately eight to ten minutes and it shows the Plaintiff walking to and fro with the brace on in both the locked and unlocked positions, as well as the Plaintiff going up and down stairs.



7. The position of counsel for the Plaintiff is that while this technology is somewhat new, nevertheless this type of demonstrative evidence should be entered into evidence in accordance with the Rules of Evidence governing same. The Plaintiff refers to two fairly recent decisions - OWENS v. GRANDELL [1994] O.J. No. 496, per Kozak J. and SMIT et al. v. DEL GUIDICE (1996) (unreported) (ONT.COURT) per MacKINNON J. The Plaintiff's counsel maintains that the principles of law to be applied to the reception of this type of evidence are outlined in those cases. Essentially, the Plaintiff's argument is that the evidence would be helpful and relevant to the issues in this case. It is argued that the animator has provided evidence relating to the technical requirements of the hardware and software and the method of computer animation and that the animator employed reliable software and hardware to the application of the information provided to him. Finally, the Plaintiff argues that the animator, to a tolerable level, accurately produced a computer animation which reasonably represents what it is intended to illustrate.



8. The Defendant's position is that the animation is far too subjective a depiction in which the animator solely relied on information provided to him by the Plaintiff. Counsel for the Defendant argues that the animation depicts something that is not entirely accurate. His principal objection is that the video animation is extremely prejudicial to his client. He argues that the video presentation is not accurate in that it does not clearly delineate a premorbid leg shortage of three-quarters of an inch - relating to the Plaintiff's polio condition and it does not depict the hardware in the hip joint. Counsel for the Defendant further argues that the depiction is prejudicial because it can mislead the Jury and it is not an objective assessment of the Plaintiff's pace or his tiring at the end of the day. In fairness to counsel for the Defence, there are subjective components to the animation which I noted and it was clear that the Plaintiff had direct input in terms of the information provided to the animator. In particular, decisions were made by the Plaintiff's counsel to display only a post accident gait with the knee brace locked and as well, it was subjectively decided that the pace of the Plaintiff's gait was one-half of the pre-accident pace. The Defendants referred me to DRAPER v. JACKLYN (1970), 9 D.L.R. (3d) 264. At p. 270 there is cited the case of Noor Mohamed v. The King, [1949] A.C. 182 where it is stated:
   
   "It is right to add, however, that in all such cases the judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial, having regard to the purpose to which it is professedly directed, to make it desirable in the interest of justice that it should be admitted. If, so far as that purpose is concerned, it can in the circumstances of the case have only trifling weight, the judge will be right to exclude it. To say this is not to confuse weight with admissibility. The distinction is plain, but cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible. The decision must then be left to the discretion and the sense of fairness of the judge."



9. Therefore Defence counsel argues that although the video may be technically admissible, nevertheless, its prejudicial value outweighs its probative value. I should indicate that counsel for the Defence stated on the Record that he was not challenging the introduction of the evidence based on Rule 53.04 of the Ontario Rules of Civil Procedure. Ultimately the matter has to be determined by the trial judge exercising his discretion judicially and the test applicable in terms of judicial discretion is whether the prejudicial effect of demonstrative evidence outweighs its probative value. The Supreme Court of Canada in DRAPER v. JACKLYN supra, held that demonstrative evidence is admissible where it is relevant to the issues in dispute and where it would assist the jury to better understand the conditions alleged so long as its prejudicial value does not outweigh its probative value.



10. In the case of RODGER v. STROP 1992 42 M.V.R. (2d) 174 at 176-177 which involved a matter of surveillance film, Morin J. held that the criteria for admitting the video as evidence at trial was governed by the principles set forth in REGINA v. CREEMER and CORMIER [1968] 1 C.C.C. 14, (N.S. C.A.) at 22. While that case dealt with photographs the principle of law still applies and that is "All cases dealing with admissibility of photographs go to show that such admissibility depends on (1) their accuracy and 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." In addition to that criteria Morin J. in the Rodger v. Strop case, added the further requirement that for evidence to be tendered it must be relevant and necessary. I also note in Morin J.'s opinion that the video being introduced in that particular case was relevant and necessary and one of his observations was that denial of the admission of the video into evidence would be unfair, not only to the party in the case but also, to the trier of fact.



11. Now applying the reasoning in the case of Smit v. Del Guidice and Owens and Grandell that I referred to previously and the other principles in the cases that I have reviewed in my Reasons, I find the following:



12. The computer generated video animation will assist the Jury and will provide some evidence by which to compare the premorbid and post traumatic gait of the Plaintiff. The only other home video of the Plaintiff is not adequate or sufficient in the circumstances for the reasons which I have outlined previously.



13. I further find the video animation is relevant to the issues in this proceeding. It is the Plaintiff's position in this proceeding that the change in the Plaintiff Is gait has caused the thigh muscle to weaken and which has resulted in the onset of fatigue, reduced and deteriorating function, including the ability to walk. This accordingly has affected his enjoyment of life as well as requiring future care. I further find that the hardware and software methods employed by the animator have been verified by the witness Mr. Lenartowich. I have viewed the video and it does not contain any editorial comments, other than the usual headings one might expect, detailing premorbid, versus post traumatic viewings of the humanoid figure and there are some isolated measurements involving the foot.



14. I find that the evidence adduced before me establishes that the video animation accurately represents the Plaintiff's premorbid and post traumatic gaits. The objection raised by Defence counsel concerning the leg shortening and hip hardware are, in my opinion, not relevant in these proceedings as these conditions remained the same before and after the accident and have no real value or effect on the fairness of the video animation. However, it is not enough to end my consideration at this point. I have also considered whether the prejudicial value outweighs the probative value and as well, the considerations that Morin J. put forward, namely whether the evidence is relevant and necessary.



15. I have provided my findings concerning relevancy. As to the matter of whether the evidence is necessary, I have considered that it is difficult for a witness to describe a person's gait or limp. It is ever more difficult, as in the present case, to describe a change in the gait. The Plaintiff had a noticeable limp before this accident occurred. The gait has, to some degree, become more pronounced since the accident and it is the Plaintiff's case that his pace and manner of walking has changed as depicted on the animation with resultant serious consequences. I find the animations are helpful, not only in relationship to the medical evidence that will be forthcoming in this trial, but also in helping the jury to understand the evidence of other witnesses. I believe the Jury's understanding of the issues will be greatly assisted by the use of the computer animation. Therefore, I find that the computer animation is necessary.



16. Finally, even though I may have found that the evidence is relevant and necessary I still have directed my mind to a determination as to whether the prejudicial value outweighs the probative value. Again, as I stated, I have reviewed the video on the Voir Dire. It is presented in a very simple, straightforward manner. There is no sound. There were few headings and no editorializing. It lasts approximately ten minutes. In essence, it depicts a humanoid with a very clear limp premorbid and a gait that is different but still a limp, post accident. I do not find that it is inflammatory. Nor do I think that the presentation is much different than any member of this jury might see on any television commercial. I find that it will not inflame the Jury, nor will it negatively impact on the fairness of this trial. I do not find that the presentation is misleading, or unfair to the Defendant.



17. While there are perceived frailties in the evidence, in particular the subjective component in the information and involvement of the Plaintiff before the production of the video, nevertheless I find that these are all matters that counsel for the Defendant may adequately pursue on cross-examination and go to the weight of the evidence.



18. My Ruling is that the computer video animation shall not be excluded as evidence in this case and I expect that Mr. Oatley will follow the proper procedure in terms of introducing that evidence before the Jury.

SHAUGHNESSY J.

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