Successful Appeal – Admissibility of Expert Evidence – SCC “Abbey” & “Lavallee” Part 2

Tambosso v. Homes, 2016 BCCA 373 (CanLII)

In our prior post, we looked at the trial decision in “Tambosso” and highlighted the importance of reviewing and analyzing the facts of your case carefully, including any contradictions or conflicts that may exist in the evidence. We reviewed the legal principles outlined in the two Supreme Court of Canada decisions referenced as R. v. Abbey and R. v. Lavallee.

The Plaintiff in this case appealed the trial decision referenced in Tambosso v. Holmes, 2015 BCSC 359 (CanLII). The Summary of the appeal decision is noted:


“Appellant alleges a motor vehicle accident in 2008 caused her PTSD. The trial judge found appellant was not credible, and the events she alleged to be the root cause of the PTSD, mainly that she saw the defendant’s eyes and he drove towards her while fleeing the accident, did not occur. Appellant submits trial judge misapprehended the evidence. Held: Appeal allowed. The other witnesses corroborated the appellant’s story. Trial judge’s misapprehension of evidence permeated his analysis of the expert evidence. Evidence from 15 lay witnesses in relation to appellant’s post-accident condition was ignored. New trial ordered.”

On appeal, the Plaintiff took the position that the trial Judge erred on the following points:

  1. not accommodating Ms. Tambosso’s disability resulting in an unfair trial;
  2. failing to properly assess credibility;
  3. failing to properly analyze the evidence in relation to a mild traumatic brain injury (three errors are alleged under this heading);
  4. misapprehending the evidence with respect to the 2008 accident;
  5. rejecting the evidence of Dr. Malherbe as unqualified;
  6. misapprehending the evidence in relation to special damages; and
  7. failing to properly assess special damages.

We will specifically highlight the portion of the decision which discussed the factual foundation necessary to give weight to an expert’s opinion, the legal principle of which are referenced in the Supreme Court of Canada decisions of R. v. Abbey and R. v. Lavallee.

The appeal decision references the trial Judge’s finding that he could not accept that the Plaintiff’s version of events was credible, and in fact stated that the circumstances as described by the Plaintiff “did not occur and were a fabrication.”

As the client’s evidence: “she observed the Defendant’s eyes as he accelerated his vehicle towards her while she stood on the highway creating intense fear that she was going to die” was not accepted to be factual, this led to a decision by the trial Judge that no weight could be placed on the evidence of the experts as they had relied on a version of events that did not happen. Specifically, the “triggering event” that is said to have caused the Plaintiff’s PTSD had not been proven.

It is noted that the trial Judge, in error, did not consider the evidence of the experts whose opinions did not rely solely on the Plaintiff’s version of the circumstances, but rather, relied on testing that had been undertaken. Nor did he rely on lay witnesses that confirmed similar facts as described by the Plaintiff, and did not explain why he did not accept their evidence.

The appeal Judge concludes:

In my view, the trial judge failed to analyze and determine, on the whole of the evidence, whether and to what extent Ms. Tambosso suffered damages as a result of the two accidents. Instead, he focussed on the findings of an event, seconds in the making, rather than the big picture in terms of the change in her post-accident condition, the significance of the change, and whether it was caused, wholly or in part, by the accident. In my view, completely discounting the expert evidence based on a questionable finding of fact, and wholly disregarding the evidence of 15 witnesses who supported the opinions of the experts and Ms. Tambosso’s evidence in terms of her post-accident condition, amounts to an overriding and palpable error.

In my view, the cumulative effect of these errors can only lead to a new trial.”


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