Appeals Court orders a new Trial finding that Defence Expert Witness lacked impartiality and Trial Judge failed in his Gatekeeper Role
A woman's vehicle was rear-ended and as a result, she brought a personal injury claim against the 'at fault' driver. The appellant, Ms. Bruff-Murphy, alleged that she suffered several injuries as a result of the car accident, including soft tissue (myofascial) injuries to her back, right shoulder and neck; depression and anxiety; post-traumatic stress disorder (PTSD); and chronic pain. " The appellant also alleged that her injuries substantially impacted her enjoyment in life and she has been unable to work due to her injuries. " At the conclusion of the civil trial, the jury awarded $23,500 in general damages but denied her special damages, future care costs and past and future income loss.One month after the trial, " the judge released his reasons why he found that Ms. Bruff-Murphy's claim for general damages met the threshold under the" Insurance Act" of a" permanent serious impairment of an important physical, mental, or psychological function. " In his ruling, the trial judge also revealed a number of substantive criticisms of one of the expert witnesses for the defence, Dr. Bail; specifically, the judge found that the psychiatrist was not a credible witness and failed to honour his obligation to be fair, objective and nonpartisan, as set out in r.4.1.01 of the" Rules of Civil Procedure. " Nevertheless, the judge stated that he allowed Dr. Bail to testify due to the very high threshold for excluding expert testimony for bias, as established in" White Burgess Langille Inman v. Abbott and Haliburton Co.(2015)" by the Supreme Court of Canada. In" Bruff-Murphy v. Gunawardena" (2017), Ms. Bruff-Murphy appealed the trial judge's ruling, on the basis that trial fairness had been breached, specifically, due to the testimony of Dr. Bail. The three key issues that the appeals court was required to address were:
Did the trial judge err in not allowing Ms. Bruff-Murphy's counsel to cross-examine Dr. Bail on prior court and arbitral findings made against the pschiatrist?
Did the trial judge err in qualifying Dr. Bail as an 'expert' and/or in not intervening or taking steps to exclude his testimony?
Did the respondent violate the rule in" Browne v. Dunn?
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