In Duda v. Sekhon, the Plaintiff was injured in two motor vehicle collisions, and consequently commenced legal proceedings. Both actions were consolidated for trial purposes. Liability for both accidents was admitted by ICBC’S lawyer.
With respect to the first motor vehicle accident, the Plaintiff testified that she was stopped at a red light when she was rear ended by the Defendant. She was not cross-examined on this evidence by ICBC’S lawyer.
Later on during the trial, ICBC’S lawyer called the Defendant as a witness, who had a differing version of events, namely that the Plaintiff had stopped abruptly, coming to a stop before a yellow light. Interestingly, ICBC’S lawyer stated that she did not wish to use this evidence in any way to contradict the Plaintiff’s testimony, but rather to show that the impact of the collision was only minor.
The Court was critical of ICBC’S lawyer for adopting this approach, stating that ICBC’S lawyer did not seem to appreciate that the use of this new evidence would necessitate the Court weighing the evidence of the Plaintiff against the Defendant. In citing the famous British House of Lords case of Browne v. Dunn, the Court noted that if the credibility of a witness is going to be challenged by calling contradictory evidence, then the witness must be given the opportunity to address such contradictory evidence in cross-examination. In the case at bar, the Plaintiff was afforded no such opportunity.
 …… Rather than repeating the lengthy speeches of Lord Herschel at pp. 70 and 71 or Lord Morris at p. 79 from the Browne v. Dunn decision it is sufficient to quote R. v. Henderson, (1999), 134 C.C.C. (3d) 131 at 141 (Ont. C.A.):
this well-known rule stands for the proposition that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given a chance to address the contradictory evidence in cross-examination while he or she is in the witness box
 In the case at bar, given the admission of liability and the lack of cross-examination of Ms. Duda on the factual circumstances of the first accident, Ms. Duda had no notice on the record or elsewhere that this challenge to her evidence was to be mounted. To consider Mr. Sekhon’s evidence, concerning the factual details of the accident which he caused, would be manifestly unfair and an affront to the orderly presentation of evidence.
 It was agreed that the evidence given by Mr. Sekhon would not be considered for any purpose by this Court. This Court will proceed in that fashion, although the evidence of Mr. Sekhon would have received negligible weight if it were to have been considered.