Browne v. Dunn Not Violated Where It is “Obvious That The Cross‑Examiner Intends To Impeach The Witness’s Testimony”
Today reasons for judgment were published by the BC Court of Appeal upholding a trial decision finding a motorist in breach of his insurance coverage due to impairment. In doing so the Court outlined limitations on the successful use of the Rule in Browne v. Dunn.
The rule in Browne v. Dunn generally requires that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the contradictory evidence in cross‑examination while he or she is testifying.
In today’s case (Hamman v. ICBC) the Appellant caused personal injuries and property damage in a motor vehicle collision. ICBC denied coverage arguing he was impaired. Following the collision various evidence was gathered documenting the appellants possible impairment. At trial ICBC relied on the evidence of a Sgt. who “made observations of the appellant consistent with impairment“. The notes of this Sgt. were shared with the appellant prior to trial.
During the course of trial the appellant testified and in cross examination the Sgt.’s observations were not put to him for comment. He argued this violated the rule in Browne v. Dunn. The BC Court of Appeal disagreed noting in some cases it is so obvious that testimony impeachment is in play that the rule is not violated. In reaching this conclusion the court provided the following reasons: