In this review of Padgham v. Ram, 2025 BCCA 100 I focus on the key legal issues applied by the Court of Appeal in this personal injury claim.
Failure to Take Recommended Medication
The claimant appealed a personal injury damages award arising from a 2016 motor vehicle accident caused by a TransLink bus. While the respondents admitted liability, the trial focused on damages. The trial judge reduced various heads of damage by 70%, finding the claimant failed to mitigate her losses by declining pharmaceutical treatments, including Botox. In almost every report, the medical experts recommended various forms of pharmaceutical treatment for the appellant’s injuries. The claimant lawyer conceded her knowledge of the recommendations. The Court of Appeal did not however endorse the use of the law of agency in these circumstances.
The Court of Appeal held that the trial judge applied the correct legal test for mitigation: whether the claimant acted unreasonably in refusing treatment and whether those treatments would have lessened her injuries. The judge found that both treating and non-treating physicians had recommended pharmaceutical options that the claimant failed to pursue without reasonable justification. The Court upheld this finding.
Misapprehension of Evidence
The claimant argued the trial judge misapprehended expert medical evidence by favouring the opinion of a neurosurgeon, Dr. Heran, over that of other specialists. The Court of Appeal found that Dr. Heran was properly qualified to give evidence and did not defer to other experts inappropriately. His conclusions were supported by his own expertise and consistent with the trial evidence. The trial judge’s preference for his opinion was not an error.
Credibility Findings
The claimant also challenged findings regarding her credibility, particularly concerning underreported income and treatment decisions. The Court found that while the judge approached her credibility cautiously, he was entitled to accept parts of her evidence. The claimant’s actions, such as submitting false tax returns and failing to pursue treatment, supported the trial judge’s conclusions.
Cross Appeal – Loss of Income
The respondents cross-appealed, arguing the trial judge erred in accepting the claimant’s testimony about income loss. The Court rejected this, affirming that despite her credibility issues, the claimant’s evidence was supported by witnesses and documents. The judge’s findings were within his discretion.
Outcome
The appeal was allowed only to reverse the 70% reduction of special damages. The remainder of the appeal and the cross appeal were dismissed. Each party was ordered to bear their own costs.
