In Padgham v. Ram, 2025 BCCA 100, Robert Brun, K.C., Jennifer Brun, K.C., and Colton Winiarski were successful for the respondents in the BC Court of Appeal. The appeal was regarding a trial court finding that a 70% reduction in damages should be applied to the appellant’s damages award.

The appeal arose from an assessment of damages following a motor vehicle accident. The respondents had admitted liability but at trial, the judge reduced several heads of damage, including special damages, by 70% based on a finding that the appellant had failed to mitigate her losses by not taking advantage of available pharmaceutical treatments.

The appellant argued that the trial judge failed to apply the correct test for mitigation, misapprehended evidence, and improperly assessed witness credibility.

The appeal was dismissed, except as it related to the 70% reduction applied to special damages, a point conceded by the respondents as those damages would have been necessary even if the appellant had properly mitigated her losses. The key arguments in support of the 70% reduction in other damages for failure to mitigate were accepted.

The key findings were:

• The trial judge applied the correct test for mitigation and his conclusion that the pharmaceutical treatments would have improved the appellant’s condition was supported by the evidence as a whole. 
• The appellant had not demonstrated the trial judge erred when assessing the amount of reduction to the contested parts of the damages award.
• The trial judge did not misapprehend the evidence of the expert witnesses; he was entitled to prefer one doctor’s evidence over others.
• The trial judge did not make a palpable and overriding error when assessing the appellant’s credibility.

In the result, the 70% reduction in the contested heads of damage was upheld.

View the full decision: Padgham v. Ram, 2025 BCCA 100.