Interesting reasons for judgement were recently published by the Supreme Court of Nova Scotia allowing a lawsuit to continue against a youth soccer coach based on allegations that she made a concussion worse by allowing an athlete to continue playing contrary to concussion protocols.
In the recent case (Rutt v. Meade) the Plaintiff was injured in a vehicle collision and sued for damages. The alleged injuries included a concussion.
A few weeks after the crash the Plaintiff played in a national soccer tournament for her club.
The Defendants in the car crash lawsuit brought a third party action against the soccer club and the coach arguing it was negligent to allow the Plaintiff to play soccer while she was still dealing with concussive injuries from the crash and that participation in sport was contrary to the established concussion protocols and this added to her prolonged injury. The coach and club asked to be let out of the lawsuit arguing they could not be responsible for the concussion which was caused by the car crash.
In denying the application and allowing the third party claim to continue the Court noted that depending on how the facts play out a coach could be found legally liable in such circumstances. In allowing the claim to proceed Justice Gail L. Gatchalian provided the following reasons:
Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic issues following a concussive injury.
In today’s case (Curtiss v. The Corporation of the District of West Vancouver) the Plaintiff fell into an open meter box on a sidewalk owned by the Defendant. The Defendant denied liability but was found negligent at trial. The fall resulted in a concussive injury with post concussive difficulties and PTSD. The Plaintiff was expected to have lingering symptoms into the future. In assessing non-pecuniary damages at $85,000 Mr. Justice Marchand provided the following reasons:
 As a result of her fall, Ms. Curtiss suffered cuts, scrapes and/or bruising to various parts of her body, including her forehead, nose, upper lip, hands, lower legs and left inner thigh. She also experienced balance issues, dizziness and headaches. Ms. Curtiss’ cuts, scrapes and bruises all healed within the first one to three months. Her throbbing headaches lasted the better part of a year, and she still gets headaches when she experiences high levels of stress. She still has occasional balance problems.
 Ms. Curtiss has received psychological counselling and acupuncture treatments since her fall and her condition has improved over time. She has recently returned to daily walking and working in her garden. Nevertheless, her self-reports, and the reports of those who are close to her, clearly establish that Ms. Curtiss is not the same person she was prior to her fall. She has trouble sleeping. She has become anxious and forgetful. She is less confident and self-sufficient. She is no longer able to multi-task. She is less active, occasionally walks with a cane, looks down during walks and gardens far less.
 Two family physicians were involved in Ms. Curtiss’ post-accident care, Drs. Dean Brown and Brian Brodie. Based on her loss of consciousness, memory loss, headaches, dizziness, imbalance, agitation and anxiety, both diagnosed Ms. Curtiss as having suffered a concussion as a result of her fall. In his April 7, 2017 report, Dr. Brown’s prognosis was that Ms. Curtiss’ symptoms would gradually improve with a full resolution within a year or so. In his September 8, 2017 report, Dr. Brodie’s prognosis was that Ms. Curtiss was highly likely to “go on to suffer some symptoms of post traumatic disorder”.
 Ms. Curtiss also submitted a report dated August 25, 2017 prepared by Registered Psychologist, Dr. William Koch. As a result of Ms. Curtiss’ vigilance to danger when walking or driving, excessive startle response, avoidance of conversations about her fall, disturbed sleep, and anxiety-related concentration deficits, Dr. Koch has concluded it is probable that Ms. Curtiss suffers a “subsyndromal” Posttraumatic Stress Disorder (“PTSD”). Dr. Koch noted a number of positive and negative prognostic indicators in Ms. Curtiss’ case. He concluded that Ms. Curtiss’ prognosis for further improvement is “negative” unless she receives further psychological treatment. Dr. Koch recommended a further 20 hours of therapy, which Ms. Curtiss had started by the time of trial.
 In cross-examination, Dr. Koch agreed with a list of further positive prognostic indicators put to him by counsel for the District. Specifically, Dr. Koch agreed that the following were positive prognostic indicators: Ms. Curtiss was open to treatment; Ms. Curtiss had returned to treatment; Ms. Curtiss reported benefitting from treatment; Ms. Curtiss had returned to daily walking; and Ms. Curtiss would soon no longer be involved in litigation. On the last point, Dr. Koch indicated that while litigation stress may soon stop, “other stressors may pop up.”
 Based on all of the evidence, I accept that Ms. Curtiss’ life has been significantly adversely affected by her fall. Though her cuts, scrapes and bruises healed relatively quickly, her post-concussion symptoms and subsyndromal PTSD have persisted. While I have optimism for further improvement, given the length of time her symptoms have persisted, the efforts she has already put into her recovery and her age, I doubt that Ms. Curtiss will ever fully return to her pre-accident condition…
 The cases cited by counsel support an award of non-pecuniary damages within the range suggested by Ms. Curtiss of $75,000 to $90,000. In my view, an award of $85,000 will adequately compensate Ms. Curtiss for the profound impact her fall has had on her physical and emotional wellbeing. Before her fall, Ms. Curtiss was an exceptionally happy, active and productive 74-year-old woman. The accident, however, caused a significant decline in her performance at work, her level of activity, her confidence in herself, and the joy in her life. As I have stated, in my view, though Ms. Curtiss will continue to make improvements, she will not fully return to her pre-accident condition.
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for injuries sustained in two collisions.
In today’s case (Wiebe v. Weibe) the Plaintiff was involved in two crashes, the first in 2012 the second in 2013. The first collision caused a fracture at the L1 level of the Plaintiff’s spine along with a concussion. The second aggravated some of her symptoms. By the time of trial she was left with some residual barriers due to her injuries as well as lingering pain. In assessing non-pecuniary damages at $85,000 Mr. Justice Tindale provided the following reasons:  I accept that the plaintiff suffered an L-1 fracture as well as an injury to her mid back. I also accept Dr. Reddy’s diagnosis that the plaintiff suffered a concussion which is in keeping with the plaintiff’s description of her injuries after the First Accident….
 The plaintiff was virtually couch bound for a number of weeks after the First Accident.
 The plaintiff suffered a considerable weight gain after the First Accident though she has ultimately lost that weight. The plaintiff is currently physically active, able to run on a regular basis as well as attend a gym.
 The plaintiff still suffers from mid back pain though there has been significant improvement in her condition…
 The plaintiff in the case at bar suffered a serious injury to her low back as well as injuries to her mid back. She also suffered a concussion and developed anxiety which had an impact on her daily life for a number of months after the First Accident.
 Considering the inexhaustive list of common factors in Stapley and the fact that the plaintiff continues to suffer pain I conclude that damages of $85,000 are appropriate for this head of damage.
Adding to this site’s archived cases addressing damages for traumatic brain injury, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a concussion with lingering headaches.
In today’s case (Barr v. Accurate Transmission and Driveline) the Plaintiff was struck by a vehicle while in a cross walk. She sustained a concussion with various lingering post concussive symptoms.
In assessing non-pecuniary damages at $65,000 Mr. Justice Williams provided the following reasons:
 Ms. Barr’s principal injury was diagnosed as a closed head injury. In the report of Dr. Tessler, the neurologist, it is reported that she “likely sustained a Mild Concussive Injury or Mild Traumatic Brain Injury at the lower end of the spectrum of such injuries.”
 Following her release from the hospital, Ms. Barr saw her family doctor, Dr. McCarthy. I note that Ms. Barr had also been under Dr. McCarthy’s care with respect to the problems she had been experiencing as a result of the workplace difficulties.
 In her report and her trial testimony, Dr. McCarthy described the plaintiff’s symptoms following the accident as well as her observations and recommendations over the ensuing months. These included soft tissue injuries entailing extensive bruising and tenderness and also a series of symptoms that are collectively characterized as post-concussion syndrome: complaint of headache, dizziness, nausea, as well as a heightened sensitivity to light and activity. The bruising and associated discomfort resolved in a fairly short time; the post-concussion symptoms continued for a longer time, but Ms. Barr was able to increase her activities, with her dizziness and nausea ultimately resolving. The only noted residual symptom was occasional headache, dealt with by rest and over-the-counter medication.
 The plaintiff described the aftereffects of the motor vehicle accident, beyond the physical bruising. She said she had episodes of headache, that her memory was less reliable, and that her concentration abilities were diminished. She said as well that her mood was affected, in that she was less cheerful and patient, particularly with her husband.
36] In my view, the injuries sustained in the accident had a reasonably serious impact on Ms. Barr, both in terms of the accident’s immediate aftermath, and its longer term effects. These lingering effects have impacted her self-confidence and the range of leisure activities she can pursue. Moreover, they have adversely affected her mood and outlook.
 That, in turn, has impaired her relationship with her husband. In this context, I note that he is somewhat compromised, in that he has a significant short-term memory deficit. Consequently, he relies on the plaintiff to be the strong one in the family. I am satisfied that her competence and confidence to fulfill this role have been diminished.
 There is as well the matter of the plaintiff’s headaches. Those have not resolved; they still occur from time to time. I am satisfied that that condition is in part attributable to the accident.
 Finally, I note that, prior to the accident, Ms. Barr was what I would describe as an otherwise healthy person just embarking upon what should be a special time of her life, her retirement. These injuries will, to some degree, negatively affect this period of her life.
 In the result, having taken into account the authorities to which I have been referred, and the circumstances as I find them to be, it is my conclusion that an appropriate award of non-pecuniary damages is $65,000.
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a concussion and chronic soft tissue injuries sustained in a collision.
In today’s case (Purewal v. Li) the Plaintiff was involved in a 2012 intersection collision. The court found the Defendant fully responsible for the crash. The Plaintiff suffered a concussion, chronic headaches, chronic low back pain and aggravation of some pre-existing injuries. The collision resulted in substantial time away from work along with lingering injuries at the time of trial. I assessing non-pecuniary damages at $110,000 Mr. Justice Greyell provided the following reasons:
 The impact sustained by the plaintiff’s vehicle during the Accident was unexpected and substantial. The injuries sustained by the plaintiff included a concussion when he struck his head, ongoing headaches and substantial soft tissue injuries to his shoulder, upper, mid and lower back. I find the Accident aggravated injuries sustained by Mr. Purewal in the Prior Accident. In addition, I find Mr. Purewal had interrupted sleep and developed a depressed mood as a result of his ongoing pain and discomfort which has affected his family life, including his relationship with his daughters and his wife. While Mr. Purewal has returned to work he will likely continue to suffer from lower back pain which will, over time, limit his ability to work the amount of overtime as he has in the past.
 Based on the principles set out in Stapley and on my review of the cases cited by counsel Mr. Purewal’s non-pecuniary loss should be assessed at $110,000, which includes a consideration of the degenerative condition of Mr. Purewal’s lower back.
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a concussive injury sustained in a motor vehicle collision.
In last week’s case (Abdalle v. British Columbia (Public Safety and Solicitor General)) the Plaintiff was injured in a 2007 intersection collision. The force of impact propelled the Plaintiff into his vehicle’s windshield resulting in a concussive injury, significant scarring and various soft tissue injuries.
The injuries largely improved in the following years but the Plaintiff was left with some residual symptoms in addition to his forehead scar. Madam Justice Ross assessed non-pecuniary damages at $50,000 (although this figure was then reduced to $27,500 for the Plaintiff’s failure to wear a seatbelt and further for his failure to mitigate his damages). In arriving at this figure the Court provided the following reasons:
In this case I have concluded as noted above that Mr. Abdalle suffered a serious laceration, concussion and soft tissue injury to his neck and back in the accident. He was left with a significant scar on his forehead. He suffered from nausea, dizziness, headache pain and stiffness in his neck and back as a result of his injuries. He was significantly disabled and largely bedridden from the time of the accident until September 2007, when he was able to return to work. He was not able to attend to functions of daily living such as cooking and household chores at this time and was unable to engage in the many activities that he had enjoyed before the accident. His sleep and mood were affected.
With the passage of time his symptoms improved. As he conceded in his examination for discovery, the dizziness was essentially resolved after a year. By October 2009 he was experiencing headaches perhaps twice a month and flare ups of neck pain every couple of months. I accept that he continues to experience periodic flare ups of neck and back pain and headache.
He was able to return to work in September 2007 and has been able to function at the workplace since that time. While he has not returned to his pre-accident level of activity, I find that the injuries he suffered in the accident do not and will not prevent him from taking part in any vocational or recreational activities. Upon a review of the cases cited by counsel and having regard to my findings concerning Mr. Abdalle’s injuries and their impact on his activities and the quality of his life, I assess non-pecuniary damages prior to reduction for mitigation and contributory fault at $50,000.
When involved in an ICBC Injury Claim it is natural to want to know what the trial experience can be like. The best way to experience what the Court process is like is to actually attend a live trial and watch the evidence play out before you. This is easy enough to do, particularly in larger centres around the Province, like in Vancouver or New Westminster, as an injury trial is occurring on almost any given day.
If you can’t do this you can read past court judgements to get a feel for the ways these claims can proceed at trial. While this is not nearly as enlightening as witnessing a live trial some useful insight can still be gleaned. If you are looking for a court judgement giving insight into the court process Reasons for judgement were released today reproducing extensive portions of a Plaintiff’s cross examination in an ICBC Brain Injury Claim that are worth reviewing in full.
In today’s case (Trevitt v. Tobin) the Plaintiff was injured in a 2004 Motorcycle Accident in Surrey, BC. The Defendant pulled into the Plaintiff’s line of travel while making a left hand turn. The Defendant ultimately conceded the issue of fault.
The trial focused on the injuries the Plaintiff had the the appropriate award for compensation. The Plaintiff alleged that he suffered a traumatic brain injury and as a result would suffer a serious ongoing disability. The Plaintiff sought over $1.5 million dollars in total damages.
The Plaintiff’s claim with respect to his injuries and the extent of disability was largely rejected with Mr. Justice McEwan finding that “the physical evidence does not account for a head injury or concussion“. In the end the Court found that the Plaintiff suffered from “general bruising and shaking up in the accident” and following a setback in his career ambitions he suffered from “ongoing difficulties with headaches, tinnitus and some balance issues“. The Court found that these issues were ongoing by the time of trial (some 5 years later). The Plaintiff’s non-pecuniary loss (money for pain and suffering and loss of enjoyment of life) was valued at $60,000.
The Court heard from many very qualified physicians who gave opinion evidence with respect to the Plaintiff’s medical condition. As is often the case in ICBC Injury Claims the court heard competing expert evidence from physicians called by the Plaintiff and the Defendant. In determining which experts had the more useful evidence Mr. Justice McEwan pointed out that “what any given doctor ‘believes’ is only helpful to the extent taht the underlying information is plausible by the standards of the court“.
To this end, the The Plaintiff’s credibility and reliability were put squarely at issue in this trial. The Defence lawyer argued that credibility was central to this case and engaged in an extensive cross examination relating to the Plaintiff’s credibility as a witness. Portions of this cross examination are set out in paragraphs 15-18 and these give good insight into what cross-examination can be like in Injury Litigation. Ultimately Mr. Justice McEwan held that the plaintiff gave some “unusual” and “inconsistent” evidence and that “he quite clearly cannot be relied upon for the accuracy of his observations about his condition“.
Reasons for judgement were released yesterday by the BC Supreme Court (Pavlovic v. Shields) awarding a Plaintiff just over $134,000 in total damages as a result of injuries sustained in 2 separate motor vehicle collisions.
The first collision was in 2006 and the second in 2007. Both were rear-end crashes and the Plaintiff was faultless in both collisions. Often in ICBC Injury Claims involving multiple collisions where fault is not at issue damages are assessed on a global basis and that is what occurred in this case.
Mr. Justice Rice found that the Plaintiff had pre-existing back and shoulder pain before these accidents that that even without these accidents the Plaintiff would have continued to have pain in these areas. The Court made the following findings with respect to the Plaintiff’s injuries and awarded $40,000 for her non-pecuniary loss (pain and suffering / loss of enjoyment of life):
In this case, the plaintiff had back and shoulder pain pre-dating both accidents. This is a “crumbling skull” situation. It is more probable than not that the plaintiff would have experienced ongoing problems with back pain, for which she had already seen a Dr. Ansel Chu on several occasions in 2003. The plaintiff claims these injuries were fully resolved, and relies on Dr. Chu’s report of August 14, 2003, in which he states that the plaintiff had had good relief from pain following a series of trigger point injections. However, Dr. Chu does not state that her injuries had resolved, merely that she was “doing quite well” and that she could make a further appointment with him if the pain flared up again. That the plaintiff made no further appointments is likely explained by the fact that she went to Europe for an extended period shortly after her last appointment with Dr. Chu.
The evidence from Dr. Petrovic’s report is that only two permanent injuries from the accidents are likely: the TMJ and the right hip. He would defer to the experts on those and has a guarded prognosis for the remainder of her injuries. Dr. Epstein testified that the TMJ injury is likely to improve with continued treatment. Dr. Smit was of the opinion that the right hip would require surgery.
I accept that the plaintiff had no pre-existing hip or jaw complaints and that these are her principal injuries. The hip may require surgery and her jaw will require ongoing management and treatment. The defendants are fully liable for these injuries. Her other injuries – the neck, shoulder and back pain – are likely to improve over the next year. The effects of the concussion resolved nine months after the accident. Taking these factors into account, I consider an award of $50,000 in non-pecuniary damages appropriate in the circumstances, the bulk of which reflects the injuries to the jaw and hip, discounted by 20% to reflect the plaintiff’s pre-existing chronic back pain, for a total of $40,000.
Mr. Justice Rice also did a good job explaining 2 legal principles which often arise in ICBC Injury Claims – the ‘thin-skull’ principle vs. the ‘crumbling skull’ principle. He summarized these as follows:
The defendant does not go so far as to deny that the accident caused or contributed to the plaintiff’s injuries. The concern is as to the extent. The issue is whether this is a “thin skull” or a “crumbling skull” situation. Both address the circumstances of a pre-existing condition and its effect upon the accident victim. The law is that the defendant need not compensate the plaintiff for any debilitating effects of a pre-existing condition if the plaintiff would have experienced them regardless of the accident: Athey v. Leonati,  3 S.C.R. 458 at para. 35, 140 D.L.R. (4th) 235. The court requires “a measurable risk” or “a real or substantial possibility and not speculation” that the pre-existing condition would have manifested in the future regardless of the plaintiff’s negligence. The measurable risk need not be proven on a balance of probabilities, but given weight according to the probability of its occurrence: Athey v. Leonati, at para. 27.
The injury is deemed “thin skull” when there is a pre-existing condition that is not active or symptomatic at the time of the accident, and that is unlikely to become active but for the accident. If the injury is proven to be of a thin skull nature, then the defendant is liable for all the plaintiff’s injuries resulting from the accident.
A “crumbling skull” injury is also one where there is a pre-existing condition, but one which is active or likely to become active regardless of the accident. If the injury is proven to be of a crumbling skull nature, then the plaintiff is liable only to the extent that the accident caused an aggravation to the pre-existing condition.
Several Judgements were released today by the BC Supreme Court addressing quantum of damages in ICBC Injury Claims. Here are the highlights of these judgements
In Guilbault v. Purser, Mr. Justice Blair from Kamloops, BC awarded a Plaintiff $75,500 in total damages as a result of an ICBC Claim arising from a August 2004 collision. The key findings of fact were as follows:
30]Ms. Guilbault describes the complaints which she attributes to the August 29, 2004 accident as including her right hip, neck and shoulder pain and her headaches as having slowed her down and preventing her from doing things that she has wanted to do. Her horse breaking and wakeboarding activities have largely ended because both activities cause her neck problems. Ms. Guilbault also testified that although her participation in many other outdoor pursuits has been diminished as a result of the injuries she has been able over time to return to those activities, just not as actively as before. She continues to suffer some neck pain and headaches, but not to the same extent as previously and she appears to have developed mechanisms to cope with and diminish her neck pain and headaches.
I am satisfied that as a result of the August 29, 2004 accident Ms. Guilbault suffered soft tissue injuries to her neck, shoulder and right hip. I accept that her right hip complaint was an exacerbation of a pre-existing condition which followed her being kicked by a horse approximately 10 years before. I also find that as a result of the accident, Ms. Guilbault suffered from particularly distressing headaches. However, I also conclude that over time the complaints emanating from the accident have been largely resolved, although she continues to suffer the occasional headache and some neck pain.
Ms. Guilbault has taken her pleasure in life from the outdoors and has enjoyed a physically active life, whether in her recreational or her employment pursuits. I consider it likely that those interests developed in part because of her dyslexia and attention deficit disorder which made scholastic endeavours difficult to pursue, but that had no or little impact on her ability to perform and thrive on physically demanding work around her family’s farm and her recreational pursuits. Her complaints following the August 2004 accident have impacted, I conclude, on her physical capabilities over the past four and a half years and will continue to impact on those capabilities to some degree into the future. To Ms. Guilbault, who so relies on her physical capacities for her enjoyment of life, such injuries have a more significant impact than on those whose lifestyle is more sedentary. The greater impact of the injuries to Ms. Guilbault and her lifestyle must be reflected in the measure of the non-pecuniary damages to which she is entitled.
The following damages were awarded:
Past loss of wages:
Loss of capacity:
In another ICBC Injury Claim Judgement released today (Haag v. Serry) Just over $120,000 in total damages were awarded to a Plaintiff injured in a 2005 collision which occurred in Surrey, BC.
The Injuries included soft tissue injuries and the onset of symptoms in the Plaintiff’s arthritic facet joints. Damages were awarded as follows:
In summary, my conclusions are as follows:
(a) The accident on October 9, 2005 caused Mr. Haag to suffer soft tissue injuries and activated facet joint arthritis which has resulted in Mr. Haag suffering chronic lower back pain.
(b) I award Mr. Haag non-pecuniary damages in the sum of $63,000, which takes into account a reduction to reflect my conclusion that Mr. Haag comes within the “crumbling skull” rule.
(c) Mr. Haag’s claim for past income loss is dismissed.
(d) I award Mr. Haag $60,000 for loss of earning capacity.
(e) Mr. Haag is entitled to recover special damages in relation to the cost of physiotherapy treatments (including mileage) and for mileage in relation to his visits to Dr. Rebeyka up to the end of 2007 only. I will leave counsel to calculate the dollar amount. The claims for the cost of physiotherapy treatments (including mileage) and mileage in relation to Mr. Haag’s visits to Dr. Rebeyka in 2008 are dismissed.
(f) With respect of the balance of special damages claimed, Mr. Haag is entitled to recover these amounts.
The third ICBC Injury Claim judgement released by the BC Supreme Court today (Majewska v. Partyka) involved a 2007 collision which occurred in Coquitlam, BC. The Plaintiff suffered a soft tissue injury to her neck, lower back and a concussion. Her syptmoms improved by about 80% by the time of trial. The court was unable to conclude whether the symptoms would fully recover or not.
General Damages were assessed as follows:
Loss of Income to Trial
Loss of Earning Capacity
The last auto injury judgement released by the BC Supeme Court today was Moore v. Brown from the Victoria Registry. This case involved serious orthopaedic and soft tissue injuries in a 2005 motorcycle accident. Damages were assessed as follows:
In reasons for judgement released today, the BC Court of Appeal dismissed the appeal of a $70,000 award of damages as a result of 2004 BC car accident.
The case possibly fit into ICBC’s LVI criteria based on the fact that the trial judge found that the ‘force applied to the Plaintiff as a resultof the collisions to her rear was actually very little indeed.’
The Plaintiff sued claiming various injuries including soft tissue injury, depression, anxiety, irremediable personality change, brain damage, concussion, post-consussion syndromne, post-traumatic stress disorder and chronic pain syndrome. The Trial Judge recjected the medical diasnoses of brain injury, PTSD and post-concussion Syndrome. In rejecting some of the alleged injuries the trial judge found that the Plaintiff was ‘unreliable’ as a witness.
The Plaintiff sought damages of over $1.7 Million. Given the trial judges findings a total of $70,000 in damages was awarded.
The Plaintiff appealed arguing tha the trial judge disregarded the evidence of four lay witnesses and three expert witnesses. The Plaintiff also argued that the trial judge should have confronted the Plaintiff during the trial to address the court’s concerns with her reliability.
The Court of Appeal dismissed the appeal. In doing so the court found that the trial judge did not disregard the evidence and had this to say about ‘confronting’ the Plaintiff
(a) Confronting the Plaintiff
The plaintiff maintains that the rule established in the case of Browne v. Dunn (1893), 6 R. 67 (H.L.) applies to trial judges as well as opposing parties. The rule is that “if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him” (at 70). The plaintiff says that, before determining that the plaintiff was lying, the trial judge was required to put that proposition to the plaintiff while she was testifying.
The plaintiff cites no authority to the effect that the rule in Browne v. Dunn applies to judges. This is hardly surprising because such a rule would be antithetical to the role of a judge in Canada. In this country, we have an adversarial system, not an inquisitorial one.
Such a rule would be unworkable with respect to judges in our system. Judges are required to be fair and impartial, and are expected to hear all of the evidence before making final decisions on the credibility of witnesses. They should not be required to confront a witness if they are concerned that there is any possibility that, after hearing all of the evidence, they may not accept all of the testimony given by the witness.
The rule in Browne v. Dunn is not suited for application to judges. The rule stipulates that if the opposing party is intending to introduce evidence contradicting the testimony of a witness, such evidence should be put to the witness so that he or she will have an opportunity to provide an explanation. What is being suggested in this case is not that anticipated evidence be put to the witness, but that the judge should confront the witness with the possibility that the judge may conclude that the witness is not credible. That is not the rule in Browne v. Dunn – the rule does not require opposing counsel to confront a witness with the proposition that the witness is being untruthful before making submissions to the judge at the end of the trial that the witness should be found not to be credible.
In addition, the rule in Browne v. Dunn has not been treated as an absolute rule. Evidence contradicting a witness’s testimony may be admitted despite a failure to put it to the witness, and the failure goes to the weight to be given to the evidence. This feature of the rule is not adaptable to judges.
The plaintiff says the case of Volzhenin v. Haile, 2007 BCCA 317, 70 B.C.L.R. (4th) 15, is an example of what a trial judge is supposed to do in confronting a witness about whose credibility the judge has reservations. The ground of appeal in that case was that the plaintiff had not been given a fair trial because, among other things, “the trial judge intervened excessively, thus giving an inquisitorial aspect to the trial that detracted from the disinterested and impartial hearing to which he was entitled” (paragraph 14). In dismissing the appeal, this Court was not recommending the approach taken by the judge in that case. It simply held that the judge had not “improperly interjected himself into the hearing, or otherwise created an appearance of an unfair trial” (paragraph 25). Indeed, Volzhenin v. Haile illustrates the type of problem that could arise if judges were required to confront witnesses about their veracity.
When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.
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