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More on ICBC Injury Claims and Plaintiff Credibility

As I’ve previously written, Plaintiff credibility plays an important role in most personal injury lawsuits.  This is particularly true in soft tissue injury cases.  Reasons for judgement were released today by the BC Supreme Court highlighting the impact that an adverse finding of credibility can have on a claim.

In today’s case (Sarowa v. Gill) the Plaintiff was injured in a 2006 motor vehicle collision in the lower mainland.  The defendant lost control of his vehicle and entered the Plaintiff’s lane of travel causing an impact which resulted in “significant damage” to the Plaintiff’s vehicle.  Fault was admitted focusing the trial on the value of the Plaintiff’s personal injury claim.

The Plaintiff gave evidence that that she suffered various soft tissue injuries which continued to bother her by the time of trial.  This was supported by the evidence of a physiatrist.  However, the Physiatrists evidence was not accepted by the Court because of  “deficiencies, omissions, and factual errors in (the doctor’s) report“.

Instead the Court preferred the evidence of Dr. Boyle, an orthopaedic surgeon ICBC arranged for the Plaintiff to see.  Dr. Boyle’s evidence included the following damaging observations:

Dr. Boyle’s opinion was that she had suffered a myofascial strain of the cervical and lumbar muscles as a result of the accident, but that the injury was mild.  He observed Ms. Sarowa to display exaggerated “pain behaviour” throughout the interview and examination.  He noted that she moaned, groaned and grimaced.  He said that patients who are in pain generally avoid a lot of movement in order to avoid discomfort, but Ms. Sarowa was restless.  When she was specifically asked to demonstrate range of motion it appeared quite limited, but she demonstrated a much freer range of motion spontaneously during the interview and other parts of his assessment.  He said that she could freely straight-leg raise from a sitting position, but couldn’t bend forward when standing ? an inconsistent presentation from an anatomical point of view.

The Court went onto to award little in the way of damages and in doing so made the following findings about the Plaintiff’s credibility:

[68]         Ms. Sarowa testified that she has not fully recovered from her accident injuries and continues to have neck and back discomfort, and frequent headaches.  As is usually the case, much of the plaintiff’s case rests on the extent to which the plaintiff is found to be a credible witness.  In this case, Ms. Sarowa was a less than satisfactory witness.  She was frequently evasive and non-responsive.  She was unable, or declined, to explain why she had claimed to be separated from her husband on December 31, 2007 when filing her 2007 tax return; but claimed at trial that she and her husband were back together at that time.

[69]         If she was being truthful at trial about the severity and duration of her accident injuries, than I would have to conclude that she omitted relevant information about her health when she applied for the job at Tim Horton’s in April 2007, and was deliberately untruthful when she applied for work at Brinks in September 2008.  I think it more likely that she was exaggerating the severity and duration of her injuries when testifying here at trial; as the evidence of her employers at Tim Horton’s and Brinks indicates she did not, in fact, demonstrate any difficulty with the physical performance of her job duties.

For those interested in this topic, this case is worth reviewing in full to get a sense of some of the factors courts look to when weighing a Plaintiff’s credibility in a soft tissue injury prosecution.

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