Next time you're in a fender-bender, try using your cellphone not only to get a photo of the damage, but also to record the other driver's lame excuses.

It will be duelling mobiles after B.C. Supreme Court Justice William Ehrcke's fascinating decision in a civil suit over an automobile accident.

In the personal injury trial, plaintiff Jodi Evelyn Jones sought to introduce into evidence a conversation she had at the scene with the defendant, Chun Wah Ma.

Immediately after the accident, Jones got out of her vehicle, approached the driver of the other vehicle, Ma, and asked if she was okay.

Ma nodded yes: She said she was sorry, that she was lost, that she had wanted to make a U-turn, that she had caused the accident, and that it was her fault.

Jones had a cellphone with her, and rather than write the statement down, she asked Ma if it was okay if she recorded their conversation on the cellphone.

Ma agreed and Jones then pressed the record button.

In that short conversation Ma repeated what she had earlier said.

At trial, however, she objected to the recording being used against her, saying it should be excluded as hearsay.

Justice Ehrcke conducted a voir dire -- a trial within a trial -- to determine its admissibility.

Ma testified that she generally understands English, but sometimes has difficulty when people speak quickly.

She said she hit her head on the windshield when the accident occurred.

She said she remembered the conversation and that she understood the plaintiff wanted to make an audio recording. She said she did not understand the recording would be used in a lawsuit and that it would be different if she had known.

She did not know why she said she was lost, because in fact she was not lost, but was looking for a place to park.

"The fact that the defendant did not understand at the time of the conversation that what she said might be used in litigation is not a basis for excluding the evidence," Justice Ehrcke concluded.

"Unlike a criminal case, there is no issue here about voluntariness of a statement to a person in authority and no issue about compliance with the requirements of the Canadian Charter of Rights and Freedoms ....[Jones] was not a person in authority and ... she was not a state agent, as those terms are used in the context of confessions in criminal cases."

The evidence was admissible, he said:

"[Ma's] concern that only part of the conversation was recorded, that [she] had hurt her head, that [she] did not know the use to which the recording would be put, and that the statement might therefore not be reliable, are matters that can be explored in cross-examination and may go to the weight to be attached to this evidence."

So drivers, keep that cellphone handy!

imulgrew@vancouversun.com