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Surrey MTBI Brain Injury Lawyers Win Precedent Setting appeal on how MTBI cases should be handled at an ICBC brain injury trial.

Surrey MTBI Brain Injury Lawyers are grateful to have been successful for our client on a recent precedent setting MTBI brain injury appeal for the plaintiff where a trial judgment was set aside and a new trial ordered. Our firm has 5 offices across BC located in Vancouver, Surrey, Richmond, Kelowna and Fort St John, BC. 1-877-602-9900.

Our Surrey MTBI Brain Injury Lawyers will ensure the proper analysis is undertaken at trial to ensure you receive the highest fair ICBC brain injury damage award.

Winning Surrey MTBI Brain Injury Lawyers

In Tambosso v. Holmes, 2016 BCCA 373, counsel for the appellant argued that the Trial Judge had misapprehended the evidence in respect of the inciting event (the accident) to such a degree that it effected his ability to properly consider every other aspect of the case.

After performing a significant review of the evidence given at trial, the Court of Appeal agreed that the Trial Judge had misapprehended the evidence about “the event”, which misapprehension was found to be material to the analysis as a whole.

Appeal Court Agrees With Arguments Of Surrey MTBI Brain Injury Lawyers
At paragraph 39 the Court of Appeal indicates as follows:

[39] The Trial Judge extensively reviewed the evidence of the experts and rejected much of it on the basis that their evidence was founded on facts that he did not find at trial, particularly the events that occurred at the first accident.

It is clear that this apprehension of the evidence in relation to this event permeated his consideration of the other evidence.

Expert Evidence Confirmed Serious Injury To Plaintiff

The Court of Appeal went on at Paragraph 48 as follows:

[48]         The trial judge’s entire analysis is based on his finding that what Ms. Tambosso testified at trial, that when she got out of her truck to go towards Mr. Holmes’s vehicle, Mr. Holmes drove towards her and she saw a bizarre look on his face, was false. This evidence was rejected despite being generally consistent with the evidence of Ms. Greenwood and the evidence of Mr. Leal, in that both said Mr. Holmes drove away rapidly, both noticed the look in his eyes, and Ms. Greenwood saw Ms. Tambosso leave the truck and report that he had a strange look on his face. Moments after, Ms. Tambosso reported this to the 911 operator.

[49]         Having found that the event of her seeing his eyes and thinking he was driving at her did not occur, the trial judge then placed no weight on any of the evidence of the experts. In doing so, he failed to consider the large body of evidence suggesting that something was seriously wrong with Ms. Tambosso after the accident. This includes the evidence of Ms. Presotto, Dr. Malherbe, and a number of lay witnesses who testified that Ms. Tambosso had changed considerably after the accident.

Error To ignore Lay Witness Evidence At Trial

Counsel for the Appellant also argued that the Trial Judge erred at Law when he failed to consider the evidence of 15 lay witnesses who testified in respect of the Plaintiff’s condition.

At paragraph 50 the Court of Appeal agreed with our Surrey MTBI Brain Injury Lawyers and held as follows:

[50]        The error in the assessment of the evidence was compounded by the trial judge’s failure to refer to these 15 witnesses who testified on Ms. Tambosso’s behalf in terms of her “post-accident” condition. The trial judge only referred to the evidence of Ms. Aldous, called by the defendant, when he rejected Ms. Tambosso’s post-accident condition. It is clear that a trial judge does not have to refer to every witness who testified at a trial, or address every piece of evidence (Housen at paras. 39, 46, 72). Where, however, as here, there was competing evidence on the issue of Ms. Tambosso’s post-accident condition, the trial judge has an obligation to analyze the evidence and address it before reaching his conclusion: Meghji v. British Columbia (Ministry of Transportation and Highways), 2014 BCCA 105 at para. 47. In this case, the trial judge accepted the evidence of the defence witness, Ms. Aldous, without reference to any of the considerable body of competing evidence on the key issue in the case.

[51]         The trial judge did refer to the evidence of Ms. Tambosso’s witnesses at para. 18 in respect to her pre-accident condition:

Several family members, work associates and friends of Ms. Tambosso testified at trial, mostly to give comparisons of her character, energy and general involvement in work and activities “before and after” the accidents. Those witnesses used terms such as “outgoing”, “vibrant”, “very well organized”, “popular”, “happy”, “fun”, “driven”, etc. I have no reason to doubt these assessments of Ms. Tambosso as they relate to times leading up to the 2008 accident.

[52]         Having accepted their evidence in terms of her pre-accident condition, it was incumbent on the trial judge to explain why he did not accept their evidence, or even consider it, in the context of her post-accident condition. He did not refer to any of the evidence of these witnesses to describe how she was after the accident, nor weigh the evidence to see if it supported Ms. Tambosso’s claim and the experts’ opinion. The witnesses included her friends and family members, and also her counsellor, Ms. Presotto.

Surrey MTBI Brain Injury Lawyers Win Appeal and New Trial

In summary, the unanimous 3 judge panel of the Court of Appeal found as follows:

[53] 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 focused 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.

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

If you have suffered a ICBC MTBI brain injury call one of our experienced Surrey MTBI Brain Injury Lawyers today at 604 602 9000.

Fort St John, Dawson Creek Personal Injury Lawyer

Spencer MacLean, Fort St John, Dawson Creek MTBI brain injury lawyer 1-877-602-9900



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