Breach of rule in Browne v. Dunn upheld – Evidence never put before plaintiff on cross-examination
This action arose out of a motor vehicle collision which occurred in March 2015. The plaintiff’s (Respondent on appeal) vehicle was rear-ended at high speed, became airborne, rolled over and landed in a ditch. The plaintiff suffered a mild traumatic brain injury (mTBI) and experienced post-concussion syndrome.
On day 12 of the trial, the trial judge ruled that the defendant had breached the rule in Browne v. Dunn, 1893 CanLII 65. The jury was struck and the trial proceeded before the judge alone. The plaintiff received more than a million dollars in damages and the defendant appealed.
The Browne v. Dunn issue arose when the defendant asserted at trial that the plaintiff was malingerer who was feigning or exaggerating his head injury. The defendant attempted to show inconsistencies in how the plaintiff reported his symptoms to medical practitioners, for example, fluid leaking from his ear only mentioned for the first time over three years post-collision. On cross-examination, defence counsel asked three of the plaintiff’s medical witnesses whether that inconsistency undermined his credibility, but it was never put to the plaintiff himself. The trial judge found failure to do so breached the rule in Browne v. Dunn.
None of the plaintiff’s medical witnesses admitted that any inconsistencies made by the plaintiff were “marked discrepancies” that would point to malingering. The plaintiff requested the jury be discharged and the trial judge granted the motion noting that the “ear fluid evidence” had “irreparably tainted the jury.” In her written reasons, the trial judge stated that the defendant had deliberately chose not to question the plaintiff on the evidence hence her conclusion that it was hearsay. The jury was thus discharged as no correcting instructions could remedy the damage nor could recalling the plaintiff fix things.
Certain facts were undisputed at trial – the fact that the plaintiff struck his head when rear-ended and that his car rolled over and ended up in ditch or that the defendant was traveling at a high rate of speed. What was in dispute was causation – whether the plaintiff sustained a mTBI with post-concussion syndrome and that he was credible.
At trial, the plaintiff’s medical expert opinions were accepted at trial and the plaintiff was found to be credible and reliable.
The rule in Browne v. Dunn requires that in order to impeach a witness, the impeaching material must be put to that witness during cross-examination. Regarding the ear fluid evidence, questions were put to the plaintiff’s witnesses but not the plaintiff himself. The defendants posited that the plaintiff was cross-examined on inconsistently reporting his symptoms so that a failure to raise that particular symptom did not breach Browne v. Dunn.
Ultimately, the defendant failed to raise the issue in a timely fashion and that prejudiced a fair trial. Trial fairness required that the plaintiff have an opportunity to address a symptom (ear fluid evidence) raised three years after the fact as the defendant claimed. The records were not put to the plaintiff to provide him an opportunity to respond but it was used to impeach his credibility with the experts. This is what breached the rule in Browne v. Dunn that could not be remedied without discharging the jury.
While the right to trial by jury is a fundamental substantive right, it must be balanced against the overarching right of all parties to a fair trial. The right to trial by jury is not absolute. It is subject to the discretion of the trial judge, supported by reasoned justification. Among her reasons, it was not appropriate to recall the plaintiff to explain the evidence put to his witnesses because a jury could misunderstand and conclude he tried to hide the evidence. A corrective instruction would not have avoided the prejudice to the plaintiff. The Court of Appeal determined the trial judge made no reversible error in discharging the jury and the appeal was dismissed with costs to the plaintiff (Respondent on appeal) for $30,000 inclusive.
Another issue before the Court of Appeal was whether the plaintiff’s treating psychologist, who testified as participant expert but was qualified as a litigation expert pursuant to Rule 53 was an error. The trial judge found the treating psychologist, Dr. Hamilton, was credible and believable. The defendant objected to the “dual” qualification, arguing that Dr. Hamilton would not be able to fulfill her duty to the court as an expert while maintaining her therapeutic relationship with the plaintiff of more than five years.
The Court of Appeal disagreed with the defendant’s assertion stating that a participant expert can still provide the court by providing fair, impartial and objective evidence of a litigation expert. Any expert who offers opinion evidence beyond the bounds of their own participation in the events at issue must comply with Rule 53.03 (Westerhof v. Gee Estate, 2015 ONCA 206 at para. 61). Once an expert acknowledges their duty of impartiality, the party opposing the admission of that evidence bears the burden of showing a realistic concern that they are unable or unwilling to comply with that duty. White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at para. 48-50.
