What is the test for oral evidence in a personal injury action?

Dixon v. Crowhurst [1976] N.B.J.No. 121 (N.B.S.C.A.D.) involved an action for damages for trespass and a declaration regarding boundary lines of the lot in question. The transcript of the proceedings at trial shows conclusively that Counsel for both parties acquiesced in the trial judge’s suggestion that oral evidence was unnecessary to aid in the interpretation of the description of the defendant’s lot. In my view, the parties are bound by the conduct of their Counsel at trial and cannot be heard to complain that they should have taken a different course. (para 9)

Finally, in Batchewana Indian Band v. Canada (Minister of Indian and Northern Affairs) [1994] F.C.J.No. 1768 (F.C.C.-T.D.) the court said, in denying the plaintiff’s application to set aside a consent order staying a judgment pending appeal: This court holds that as between the plaintiffs and the defendants, the plaintiffs are bound by their former counsel’s expression of their consent, whatever may be the resolution of the issue of such consent between the plaintiffs and their erstwhile counsel. (paragraph 7)