Appeal of $70,000 Soft Tissue Injury Claim Dismissed
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.