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CIVIL EVIDENCE - Expert evidence - Criteria for admissibility

Wednesday, October 23, 2019 @ 7:52 AM  

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Appeal by the defendant Purtill from the trial judgment in the plaintiffs’ action for damages for personal injuries. The appellant, driving while impaired, drove into the respondents’ vehicle, causing the death of a young child and serious injuries to other family members. Liability was admitted. During the trial, the trial judge made comments about the threshold regulation. The trial judge permitted an expert orthopedic witness to rely on evidence from Statistics Canada concerning the working expectancy of patients with chronic low back pain. A registered psychologist gave evidence on whether the injuries to the children met the threshold. The appellant did not object to the evidence. The respondents recovered over $1 million before statutory deductions, which reduced the net recovery to $832,300. The nine-day trial took place 10 years after the accident. The trial judge awarded the respondents $383,922 in costs, including $90,062 in disbursements. The respondents’ offered to settle for less than the amount of the ultimate recovery.

HELD: Appeal dismissed. The trial judge’s comments during the trial did not demonstrate bias. The fact the expert witness considered statistical information as one of the many elements of knowledge grounding his opinion did not render his evidence inadmissible and did not preclude the trial judge from referring to that evidence. The failure of the appellant to object to the psychologist’s evidence, when the witness was qualified, could be taken as an acknowledgement that the witness was qualified to give the opinion she tendered. The awards of damages for loss of care, guidance and companionship did not exceed the range set out by Fiddler v. Chiavetti. The trial judge made no error in principle in his assessment of costs, which were fair and reasonable.

Rodrigues v. Purtill, [2019] O.J. No. 4711, Ontario Court of Appeal, G.R. Strathy C.J.O., J.C. MacPherson and M.H. Tulloch JJ.A., September 20, 2019. Digest No. TLD-October212019007