Executive Summary: Key Legal and Evidentiary Issues

• The trial judge correctly applied the legal test for failure to mitigate and found the appellant acted unreasonably in declining pharmaceutical treatment.

• A 70% reduction in several heads of damages was upheld based on credible medical evidence and the appellant’s failure to follow recommended treatments.

• The trial judge did not err in preferring one expert’s opinion over others or in assessing qualifications and relevance of medical testimony.

• Allegations of misapprehended evidence and improper credibility findings were rejected due to consistent reasoning and evidentiary support.

• The appeal succeeded only on the issue of special damages, which should not have been reduced for failure to mitigate.

• The cross appeal challenging the income loss findings was dismissed; the trial judge was entitled to accept portions of the appellant’s testimony despite credibility issues.

Background and trial findings

Cheyenne Ashley Padgham was injured in a 2016 motor vehicle collision caused by a TransLink bus driven by Jagat Ram. The defendants admitted liability and causation, and the trial focused solely on assessing damages. At the time of the accident, Ms. Padgham was working as a bank teller and restaurant server. She later transitioned to work as a tattoo artist, claiming her ability to work was significantly reduced due to her ongoing injuries.

The trial judge found that she continued to suffer from chronic headaches and pain related to the collision. However, he reduced various heads of damages by 70% due to her failure to mitigate. Specifically, he concluded that Ms. Padgham unreasonably declined pharmaceutical treatments that could have improved her condition, despite consistent medical recommendations over several years. The judge accepted some of her evidence about lost income, but also expressed serious concerns over her credibility due to false tax filings and inconsistent treatment efforts.

Appeal by the plaintiff

Ms. Padgham appealed, arguing the trial judge misapplied the legal test for mitigation, misunderstood medical evidence, and unfairly assessed her credibility. The Court of Appeal found no reversible error in the application of the mitigation test. The judge properly relied on expert opinions and found, supported by evidence, that pharmaceutical treatments—including Botox and Lyrica—would likely have improved her symptoms. The Court clarified that while caution is required when relying on medical-legal experts, this case involved overlapping recommendations from both expert and treating physicians.

The appellant's credibility arguments also failed. While the Court acknowledged the trial judge’s remarks could have been more neutral, it confirmed he was entitled to be skeptical due to admitted tax fraud and treatment avoidance. Importantly, the judge did not reject her testimony entirely but accepted aspects corroborated by other evidence.

Special damages and appellate correction

The appeal was allowed in part—only with respect to special damages. The Court accepted the respondents’ concession that special damages for incurred costs (e.g., treatment and expenses) were not impacted by the mitigation issue and should not have been reduced.

Cross appeal by the defendants

The defendants cross-appealed, challenging the trial judge’s acceptance of Ms. Padgham’s evidence regarding income loss, especially given her false tax reporting. The Court of Appeal dismissed the cross appeal. It reaffirmed that courts may still award income loss damages even when tax returns are inaccurate, so long as there is sufficient credible evidence. In this case, the judge relied on witness testimony, business records, and the nature of the appellant’s injuries to support a partial finding of income loss.

Final outcome

The Court of Appeal:

• Allowed the appeal in part, restoring the full amount of special damages.

• Dismissed the remainder of the appeal, including challenges to mitigation, credibility, and the assessment of medical evidence.

• Dismissed the cross appeal, upholding the judge’s findings on loss of income and earning capacity.

• Ordered no costs due to mixed success on both sides.

The decision reinforces judicial deference to trial judges on credibility, factual findings, and the assessment of mitigation in personal injury cases.