ICBC Law

Further to my previous articles on this topic, little can do more damage to a lawsuit than a Court finding a Plaintiff lacks credibility.   When advancing an injury claim it’s important to know the types of factors Courts review in gauging whether a witness should be believed.  Reasons for judgement were recently published by the BC Supreme Court, Nanaimo Registry, discussing some of these.

In today’s case (S.T. v. S.K.) the Plaintiff was involved in a severe motor vehicle collision in 2007.  The driver of the offending vehicle admitted fault.  The Plaintiff sued for compensation for her personal injuries which included trauma to her left shoulder and right ankle.  The Plaintiff was ultimately awarded compensation for her injuries.  Prior to assessing damages, however, the Court highlighted some concerns with the Plaintiff’s credibility.  Madam Justice Smith provided the following criticism of the Plaintiff’s evidence:

[6]           I will begin with some observations about the credibility of the plaintiff.  I have concluded that, unfortunately, I cannot rely with entire confidence on her testimony.  The reasons for this conclusion are as follows.

[7]           First, some of her claims are exaggerated.  For example, at the examination for discovery, at Question 319, the plaintiff was asked:

Q         All right, so explain to me about the depression.  How is it that you relate that to the accident?

A          To give an example, if I said before the accident if I had – I was healthy, I was happy, I had good choice of boyfriends really to the point that they were motivated, outgoing, took care of me, respectful.  After the accident I couldn’t do sports, I couldn’t do anything that I did all my life with all my best friends that I grew up with for twelve years.  I couldn’t do to the best of my ability of sports that I used to do, and acting, and stuff like that.  And because of that it brought me down, it brought me extremely down to the point of where I – I was just so lonely and alone that I was pretty much willing to have any kind of boyfriend that would take me, literally, just because I was – I felt like I had nothing left by the time, you know.

[8]           The answer at discovery was an exaggeration, I must conclude, in light of the  plaintiff’s admission at trial, under cross-examination, that after the accident she led a very active social life, had a lead role in the school musical, and participated (though in a reduced way) in sports, including volleyball and soccer.

[9]           Second, where one might expect witnesses to be called to corroborate the plaintiff’s evidence regarding her symptoms, the plaintiff called only one witness in that respect, her mother.  I do not suggest that L.B. is not a credible witness, but she does have a very close relationship with her daughter and an obvious motive to view the evidence in a way that would be favourable to her daughter.  Also, L.B.’s ability to corroborate the plaintiff’s evidence was limited by the fact that the plaintiff has not lived at home for extended periods of time since the accident, and is currently not living at home.  No friends of the plaintiff were called, nor any fellow employees or supervisors, to relate their observations of the plaintiff experiencing the kinds of difficulties she described in her testimony.

[10]        Third, in her application for admission to the licensed practical nurse program at Vancouver Island University, the plaintiff wrote:  “I am also in very good health.  I know that working as a care aide is at times heavy work.”

[11]        Under cross-examination, she was asked whether she was in very good health and answered, “No.”  Asked whether she was misrepresenting her health in the application letter, she was unable to explain this discrepancy, as seen in the following extract from her evidence at trial.  I quote from page 73 of the transcript of the May 21 evidence, beginning at Line 29:

Q         Well, S.T. ‑‑

A          At the time I’m sure I would not have been thinking about healthwise related to my pain in my shoulder or as of that time, pain in my ankle.  I would have probably been referring to my mental health and not thinking about my physical health.  I was ‑‑

Q         Well, when you comment that you know that working as a care aide is at times heavy work, you’re specifically relating that to the physical requirements, certainly not heavy mental work.

A          Well, not heavy meaning literal heavy.  I mean ‑‑ I meant hard work.  That doesn’t ‑‑ that doesn’t include physical work.  Mental work.  For example, as a care aide, it’s very heavy work with dealing with seniors, seniors passing away.  Having that emotional part of it is very heavy too.  So –

Q         S.T., are you suggesting that when you wrote: “I know that working as a care aide is at times heavy work”, you were referring to the heavy emotional requirements of the job?

A          Not all but that is a big factor.  Hard work.  I would have rephrased it but that’s the way I wrote it.

[12]        That answer is, to put it charitably, disingenuous.

[13]        Fourth, the plaintiff was cross-examined at trial about a statement she made to the claims adjuster, David Beatty, on May 29, 2009, when she was in his office to discuss a possible settlement.  She agreed that she “may have said” that she had recovered and was able to do virtually all that she could do before the accident.  At trial, she said at one point that it was “not true”, and at another point that it was “true at the time”.

[14]        On her examination for discovery at questions 228 to 229, however, she said:

Q         So, will [the left shoulder] cause you some difficulty once a month, or –

A          I can’t estimate, it’s just kind of a random kind of act.

Q         Okay, and have you had any other problems as a result of the accident that weren’t specified in the Statement of Claim?  Any other injuries that haven’t been covered?

A          No.

[15]        At trial, she tried to suggest in her testimony that she had given that answer on discovery because at that exact time her shoulder was not troubling her.  Asked at trial whether she understood that the question was not about the exact time, but about that period of time, she said she did not know if she understood that, adding, “My shoulder hurts me when it is used:  If I sleep on it, I’m in pain, or if I reach with it I’m in pain.  I can’t put dates and times on it, it’s whenever I aggravate it.”

[16]        Having noted those reasons for viewing the plaintiff’s evidence with some caution, I will briefly review her testimony and the testimony of other witnesses relating to her injuries.

(Update March 8, 2012 - The case discussed below was set for a new trial after the Court of Appeal found the trial judge made errors applying the law of mitigation, causation and credibility.  The Court of Appeal Judgement can be foud here)

Browne v. Dunn is an English case that’s almost 120 years old.  Despite it’s vintage its a case all British Columbian’s should be familiar with when going to trial.

The rule in Browne v. Dunn states that if you intend to contradict an opposing witness on a significant matter you must put the contradictory version of events to the witness on cross examination.  Failure to do so permits the Court to prefer the witness’ version over the contradictory version.  In practice, failure to follow the rule of Browne v. Dunn can prove damaging to a case and this was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.

In today’s case (Wahl v. Sidhu) the Plaintiff was involved in a significant collision in Surrey, BC in 2006.  The Plaintiff sustained various injuries.  At trial he sought over $1.1 million dollars.  Much of his claim was dismissed but damages of $165,000 were assessed to compensate him for physical and psychological injuries from the crash.

During the course of the trial the Defence lawyer argued that the Plaintiff was not credible and was exaggerating his claim.   The lawyer relied on evidence from various treating medical practitioners who had negative opinions about the Plaintiff’s efforts and argued that “the plaintiff is intentionally faking symptoms“.   The Defence lawyer did not, however, cross examine the Plaintiff with respect to these witnesses allegations.  Mr. Justice Chamberlist relied on the rule in Browne v. Dunn and refused to place any weight on these challenges to the Plaintiff’s credibility.  Specifically the Court provided the following useful comments:

[213] … I wish to comment on what occurred and what did not occur with respect to the evidence of Mr. Wahl at trial.  My notes of his evidence, particularly his evidence given under cross-examination, indicate that negative comments made by the various treators and Mary Richardson and Gerard Kerr were not put to him under cross-examination so that he would have an ability to deal with that evidence.  It is my view that the witness must be confronted with these opinions before the opinion can be properly dealt with (Browne v. Dunn, (1893) 6 R. 67 (H.L.)).  This is especially required in a case such as this where the defence submits that the plaintiff, in this case, is not motivated to get better and that the credibility of the plaintiff is at issue.

[217] The defence, in this case, called Dr. Bishop as a witness. …As indicated earlier Dr. Bishop was originally retained by the plaintiff but did not call Dr. Bishop at trial.  The defence made a point of filing Dr. Bishop’s reports and defence called her evidence as part of its case.  In the defence written submissions, the defence maintains that “her evidence makes it clear that she is of the opinion that the plaintiff is intentionally faking symptoms”….

[219]     It is important to note the first lines of the evaluation of effort where Dr. Bishop said, and I repeat:

. . . Although effort testing of itself cannot determine motivation as submaximal effort may be multifactorial in origin (e.g. fear of pain, anxiety with regard to performance, perception of dysfunction, need to demonstrate distress, etc) . . .

That finding cannot be relied upon, in my opinion, by the defence when the particulars of those conclusions were not put to the plaintiff when he was on the stand….

A decision was released today by the BC Court of Appeal addressing personal injury lawsuits and Judges duties to address credibility issues in their reasons for judgement.

In today’s case (Mariano v. Campbell) the Plaintiff was injured in a 2006 BC motor vehicle collision.  The Plaintiff apparently suffered from chronic soft tissue injuries as a result of this crash.  At trial her claim was successfully prosecuted and she was awarded close to $115,000 for her damages (You can click here to read my post summarizing the trial judgement).

During trial the Plaintiff’s credibility was put squarely at issue with the defense lawyer cross examining the Plaintiff with previous statements in which she stated that her injuries recovered shortly after the collision.  The trial judge dismissed these challenges and found that the Plaintiff was a ‘very credible‘ witness.  The Defendant appealed the judgement arguing that the trial judge “made palpable and overriding errors in assessing the plaintiff’s credibility‘.  The BC Court of Appeal agreed and found that the judge failed to “seize the substance of the critical issues” and ordered a new trial.

It is very unusual for a trial judge’s findings to be overturned on the issue of witness credibility.  In reaching this decision the BC High Court said the following about a judge’s duty to give reasons for judgement explaining how they assessed credibility:

38]         This appeal concerns assessments of witness credibility and findings of fact.  It is well-settled that an appellant court must exercise great restraint in reviewing such matters.  They are properly the province of the trial judge.  In the absence of palpable and overriding error, this Court must defer to the findings of fact of a trial judge (Housen v. Nikolaisen, 2002 SCC 23, [2002] 2 S.C.R. 235).

[39] The function of a trial judge in determining credibility, and the limited role of appellate courts in respect of credibility findings  were discussed by the Supreme Court of Canada in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3:

…what is required is that the reasons show that the judge has seized the substance of the issue…The degree of detail required in explaining findings on credibility may also, as discussed above, vary with the evidentiary record and the dynamic of the trial.  The factors supporting or detracting from credibility may be clear from the record.  In such cases, the trial judge’s reasons will not be found deficient simply because the trial judge failed to recite these factors.

[40] This case involved a soft tissue injury.  Because of the lack of purely objective evidence for such injuries, the evidence in support of the plaintiff’s case necessarily derived solely from her own reports of her injuries – either to the court, to her doctors, or (to a lesser extent) to her work colleagues.  In the circumstances, the plaintiff’s credibility was critical to the judge’s assessment of the case.  …

[41] In the case before us, then, a critical issue was whether the plaintiff’s evidence at trial about the course of her recovery was credible.  To make that determination, the judge had to examine the plaintiff’s various statements and the other evidence.

[42] It is my view that the reasons for judgment do not demonstrate that the judge “seized the substance of the critical issues”.  There are several indications that she did not do so.

[45] The trial judge’s treatment of the application for insurance and the applications to the colleges is also problematic. The documents, as previous statements by the plaintiff, were admissible for the truth of their contents.  Indeed, strong arguments can be advanced for accepting the documents as true, particularly given the evidence of Dr. Darby in cross-examination.  The judge, however, does not appear to have considered the possibility that the documents were truthful in stating that the plaintiff had fully recovered by March 2007.  Instead, her reasons suggest that she assumed that the statements to the insurer were false, and that their only value was in respect of an assessment of the plaintiff’s general credibility.  She dismissed them as being of little moment in that assessment.  She did not even mention the statements in the applications to the colleges…

[48] In my view, the reasons are problematic.  The fact that the plaintiff continued to work despite her symptoms does not, on the face of it, have any relationship to her veracity.  The issue in this case was not whether the plaintiff was exaggerating symptoms, or even whether she experienced pain at work at the time of trial.  Rather, it was whether her pain had been ongoing since the time of the accident.

[49] Similarly, the plaintiff’s emotional reaction to her neck problems had no bearing on the question of whether she was being completely forthright with the court in respect of the course that her pain took.

[50] I conclude that, looked at in their entire context, the reasons do not suggest that the trial judge “seized the substance of the critical issues”.  She did not deal with important contradictions in the evidence, and appears to have misapprehended or ignored parts of the cross-examinations of the plaintiff’s witnesses. This constitutes the kind of error that compels this Court to set aside her order.

Individuals who suffer long-term chronic pain following a motor vehicle collision often attend frequently for treatment to their general practitioner.   These visits generate ‘clinical records‘ which generally document the patients complaints.

These clinical records are usually produced in the course of a subsequent personal injury lawsuit.  ICBC defence lawyers scrutinize these records and see if they can poke a hole in the Plaintiff’s case.  A common tactic is to review these records and see if the Plaintiff complains of the same symptoms at each and every visit.  If not, ICBC may argue that the Plaintiff recovered since there is a lack of continuous complaint.  So, does this mean an injured Plaintiff should make sure they discuss their accident related complaints each and every time they see their doctor?  The answer is no and reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing some of the reasons why this is not necessary.

In this week’s case (Van Den Hemel v. Kugathasan) the Plaintiff was injured in two motor vehicle collisions in 2006.  She was not at fault for either and the trial focused on the value of her ICBC claims.   During the course of trial ICBC’s lawyer argued that the Plaintiff was not credible and that her in Court testimony of chronic pain was contradicted by “temporal gaps” in the Plaintiff’s doctors clinical records.  Mr. Justice Stewart was quick to dismiss this attack and provided the following useful comments in response to the Defendant’s argument:

[9]             Another wing of the defendants’ attack on the plaintiff’s testimonial reliability - more particularly sincerity - focused on what the defendants say is the disparity between the plaintiff’s telling me, in effect, that her pain and suffering in the neck, shoulders and back has been present, persistent and continuous since the first motor vehicle accident in April 2006 and what the defendants describe as telling temporal gaps in what the plaintiff complained of when she was seen by her family doctor, Dr. Sun, over the years.

[10]         The plaintiff, in effect, told me that on any given occasion when she saw Dr. Sun and had her few minutes in the examining room that she went straight to only what was her most significant problem or complaint that day. I accept that. It makes sense in light of how our medical system functions today. Also I infer from the whole of Dr. Sun’s testimony that it was her practice to let the patient take the initiative and that she did not invite the patient to lodge a bill of complaints. Last, I note that - as will become clear later in these Reasons for Judgment - throughout the four years in question in the case at bar the plaintiff has been a woman beset with a myriad of problems for which she sought help or advice from caregivers, only some of which were neck, back and shoulder problems.

Mr. Justice Stewart went on to award the Plaintiff $75,000 in non-pecuniary damages for her accident related injuries.  This case is also worth reviewing in full for the Court’s lengthy discussion of Plaintiff “credibility” and “testimonial reliability” which is set out at paragraphs 5-17.

A common theme when ICBC or other personal injury claims go to trial is that of dueling expert witnesses.  Often times the Plaintiff’s treating physicians provide an opinion to the Court that is contradicted by experts hired by defendants or insurance companies.  In deciding how much the claim is worth a Court must navigate through these competing opinions and decide who to believe.

Treating doctors, due in part to their long term relationship with their patients, sometimes provide their opinion in an argumentative way.  While well intentioned such opinions can do more harm than good.  The reason being is that the Rules of Court require expert witnesses to be neutral when presenting their opinion to the Court.  When experts advocate for one side or another they risk having their opinion discounted or even being excluded from evidence altogether.  The potential harm caused by expert advocacy was demonstrated in reasons for judgement released today by the BC Supreme Court, Vernon Registry.

In today’s case (Gendron v. Moffat) the Plaintiff was involved in a motor vehicle collision in 2008.  Fault for the crash was admitted by the opposing motorist focusing the trial on the value of the Plaintiff’s ICBC claim.  The Plaintiff sustained various injuries.  The Court heard different opinions as to the extent of these from the Plaintiff’s treating doctor and from the expert hired by ICBC.

The Plaintiff’s GP provided the opinion that the Plaintiff suffered from chronic injuries as a result of the Crash.  The doctor hired by ICBC disagreed and gave evidence that the accident related injuries largely ran their course and the Plaintiff’s symptoms were better explained by unrelated arthritis.  Ultimately Mr. Justice Cole preferred the evidence of ICBC’s doctor.  In coming to this conclusion the Court found that the Plaintiff’s doctor acted as an advocate and excluded portions of her evidence and discounted other parts.  Mr. Justice Cole provided the following useful comments:

[15] The doctor summarized her condition as follows:

Ms. Gendron sustained grade 2 strains to her cervical, thoracic and lumbar spines and a grade 2 strain to her right shoulder when she was T-boned in an intersection by a vehicle that had run through a red light. The impact imparted both forward and rotational acceleration forces through Ms. Gendron, and the subsequent symptom pattern and chronology of injury were consistent with the mechanism and severity of injury. Ms. Gendron has consistently demonstrated a high level of motivation to recover from her injuries, and has remained at work since her MVA , albeit in a reduced capacity. [Emphasis added.]

[16] The last two sentences of that summary I had removed, as in my view, the first sentence dealing with the impact of the accident and acceleration forces were not within the expertise of the doctor and the comment about her high level of motivation demonstrated that the doctor was acting more as an advocate than as an independent professional.

[17] The doctor was also critical of Dr. T. O’Farell, an orthopaedic surgeon who filed a report and gave evidence at trial. He was of the view that Dr. O’Farell’s report was “below the currently accepted standard for a specialist’s medical legal report.”  Again, that sentence was removed on the basis that the family doctor was more of an advocate than an independent professional and lacked the expertise to make such a statement…

[22] I am of the view that the plaintiff’s family physician, while a highly qualified doctor, is more of an advocate than an independent medical specialist and that it is almost impossible to be objective and an advocate at the same time. I therefore prefer the evidence of Dr. O’Farell that her neck pain is due to arthritis in her spine…

[27] In conclusion, I find that the injuries sustained by the plaintiff in the motor vehicle accident for which the defendant is liable, have substantially resolved.

While the doctor’s advocacy was not the sole reason for the Plaintiff’s lack of success at trial (The Court also found that the Plaintiff was not a credible witness) it goes to show that an overzealous treating physician can do more harm than good when providing an opinion to the Court.  It is important for treating doctors to give their evidence in a fair and balanced manner to maximize the chance of having their opinions accepted at trial.

After a collision occurs it is not uncommon for the parties involved to disagree as to how the crash happened and who is at fault.  If there are no independent witnesses to a crash it can be difficult to decide which version is more believable.  When these cases go to trial it is vital to give evidence in a consistent, reliable and credible way otherwise the Court may discount what you have to say.  Reasons for judgement were released today by the BC Supreme Court, Cranbrook Registry, dealing with the topic of credibility.

In today’s case (Tierney v. GMAC Leaseco Corporation) the Plaintiff was injured in a motorcycle collision in 2005 in Kimberley, BC.  The Plaintiff lost control of his motorcycle and struck a building located on the opposite side of the road from his proper lane of travel.  He claimed that the Defendant was at fault for the crash because the Defendant (who was driving a vehicle in the opposite direction of travel) “cut into the corner on his side of the road forcing him to take evasive action by turning sharply.”

The Defendant disagreed arguing that she never came into the Plaintiff’s lane of travel, rather the Plaintiff simply lost control and was responsible for his own injuries.  There were no independent witnesses who could satisfactorily comment on how the crash happened leaving the Court to pick between the Plaintiff’s and Defendant’s evidence.  Ultimately Mr. Justice McEwan preferred the Defendant’s evidence and dismissed the lawsuit.   The Plaintiff’s evidence was at times “uncertain“, “conflicting” and “contradictory“.  These were some of the reasons which caused the Court to prefer the Defendant’s version of events.  In dismissing the lawsuit the Court held as follows:

[48]        The absence of physical evidence, and the unreliability of the various witnesses, including irreconcilable contradictions in the evidence, leaves the court to weigh what it has. This is not a case where both parties are implicated and it is not possible to discern the degree to which each is responsible, leading to an equal split in liability. For the plaintiff to succeed, the court must accept his evidence that, first, he intended to turn right at the curve and second, that the defendant was in his lane at that point. His own evidence and the surrounding evidence and circumstances suggest it is unlikely that his intention at the time was to go up to the highway.

[49]        The defendant on the other hand, gives a straightforward story of proceeding from the highway to the curve on Jennings Avenue, having made a recent right turn. She had had little opportunity to accelerate as she approached the curve. She was not preoccupied or distracted. Her evidence is unreliable in the aftermath of the realization that her vehicle was in danger of colliding with the plaintiff’s motorcycle, but not in respect to the details leading up to the event..

[50]        I do not think it is possible to say what happened with complete confidence, although I think the defendant’s version of events more likely. What that means for the plaintiff is that he has failed to carry the burden of proof that, on a balance of probabilities, the defendant’s negligence was the cause of the accident. This means, accordingly, that the plaintiff’s action is dismissed.

While there are no novel legal principles arising out of this decision, this case is worth reviewing in full for anyone involved in an ICBC case where credibility will play a crucial role to see the types of facts a Court can take into account when weighing two different versions to a motor vehicle collision.  For more on this topic you can click here to read my archived posts discussing credibility in ICBC claims.

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.

As I’ve previously posted, when Plaintiff’s sue for damages from soft tissue injuries sustained in so-called “Low Velocity Impacts” their credibility often plays a crucial role at trial.  The simple reason for this is that without objectively verified injuries a Court must make a favourable finding to accept the Plaintiff’s evidence that they experienced pain following the collision.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing the relationship between soft tissue injuries and plaintiff credibility.

In today’s case (Chandra v. Chen) the Plaintiff was injured in a 2007 BC motor vehicle collision.   The claim was defended with the argument that “the Plaintiff did not suffer an injury in the accident which was so slight that the other driver involved  in the accident could not even recall an impact to the front of his vehicle“.

This defence was rejected with the Court finding that the Plaintiff did indeed sustain “some minor injuries…which have merged into a continuum with stresses that have arisen at work“.  Mr. Justice McEwan went on to award the Plaintiff $20,000 for her non-pecuniary damages.  Prior to doing so the Court made the following useful comments about the significance of Plaintiff credibility in soft tissue injury cases and the relationship of the collision to her injuries:

[21]         It is often difficult to assess injuries where the mechanism of injury is not obvious – as is often the case in low damage accidents – and there is little other than the plaintiff’s own evidence to support a claim of ongoing pain. Because “credibility” is crucial, much is often made of inconsistencies in medical records that ostensibly record the impressions of physicians of the plaintiff’s remarks under circumstances that are themselves difficult to assess. The court is often left with making what it can of the impression given by the plaintiff in the witness box.

[22]         The plaintiff did not appear to be exaggerating. She gave her evidence in a straightforward manner. I accept that she suffered some pain associated with the accident and I accept that she is sincere in her effort to recall the pain she has suffered since that time. To the extent that she has been unspecific, and at times somewhat inconsistent, I do not think she has been motivated to mislead. I think her attempt to recall all of the pain she attributes to the accident somewhat at odds with her actual experience, which appears to have been of some aches and pains that would come and go over time. I also think that the stresses of a physical occupation have at times been assigned to the accident when they have actually arisen independently.

Further to my numerous posts revieiwng BC Supreme Court cases interpreting and applying Rule 37B following an injury claims trial, reasons for judgement were released today dealing with a unique issue; in exercising discretion under the Rule can the Court consider the conduct of the successful litigant?

In today’s case (Lakhani v. Elliott) the Plaintiff was injured in a 2005 car crash.  Before trial the Plaintiff made a formal offer to settle her case under Rule 37B for $95,000 plus costs and disbursements.

While the Plaintiff did not obtain all the compensation she sought at trial she fared well enough to beat her formal offer.  Specifically, after an 11 day trial Mr. Justice Voith awarded the Plaintiff just over $105,000 in total damages (You can click here to read my post summarizing the trial findings).

Despite the Plaintiff’s relative success at trial all did not go smoothly.  Mr. Justice Voith made some damaging findings with respect to her credibility.  Some of the highlights of these findings were as follows:

[33]      The defendants asserted that Mrs. Lakhani’s credibility was suspect. I agree in significant measure. I believe there are a number of distinct factors that have caused me to question, in some cases reject, and in other cases to significantly discount her evidence. In the main, I find that Mrs. Lakhani has overstated her symptoms resulting from the Accident; downplayed the significance of her 2001 workplace injury; and has been untruthful regarding the Accident’s effect on her graduation from nursing school. I will discuss these concerns in turn…

[40]      I believe that Mrs. Lakhani has tended to considerably overstate the severity of the symptoms that she suffers from as a result of the Accident….

[46]      For the plaintiff to assert that she has routinely and consistently suffered from pain, from the date of the Accident to the trial, which approaches the worst pain possible is not tenable. For her to describe her pain in terms which would be comparable to that of patients who are heavily medicated to assist with their pain management or who are inextremis goes beyond mere subjectivity or imprecision. It is instead either so inaccurate a description as to be of no value or it is a description intended to overstate. In either case it is not a description that can be relied upon….

[51]      The second significant concern with the plaintiff’s evidence was a tendency to downplay the significance of her 2001 workplace injury or to suggest some improvement in her symptoms in relation to that injury prior to the Accident…

[54]      Indeed Mrs. Lakhani sought broadly to suggest that in late 2004 she reclaimed or reassumed control of her life. She said this was so with respect to spending time with her sister, with respect to gardening and even with respect to her household activities. This too is all inconsistent with the objective record of what she told others she could do, with the medical assessment that her condition had plateaued or with her admission that things had become “as good as they were going to get”…

[59]      Quite simply the overall picture which the plaintiff sought to paint with her evidence was one where the very significant “life altering changes” brought on by her low back injury occupied little or no space. This absence of balance in her evidence had the affect of considerably detracting from its weight.

[60]      A third concern with Mrs. Lakhani’s evidence arises from having testified that the Accident caused her to graduate two terms later than she otherwise would have. Specifically, Mrs. Lakhani said that the pain and difficulty associated with the Accident caused her to skip the May to August 2005, as well as the January to April 2007 academic terms. This is not credible on an objective basis…

[66]      Plaintiff’s counsel sought to persuade me that an eight month delay in Mrs. Lakhani’s graduation was a very modest component of the plaintiff’s claim and not one that would cause the plaintiff to be less than forthright. In my view, however, the focus of the plaintiff’s evidence was not designed to obtain the modest financial benefit that receiving her degree earlier would have generated, but rather to impress upon the court the ongoing severity of her injuries. Quite apart from her motivation, the documents I’ve referred to as well as the admissions she made in cross examination, simply do not accord with the evidence she first gave.

With this background at hand the Plaintiff brought an application for double costs under Rule 37B.  The Defendants opposed and argued that given the Plaintiff’s “failure to be forthright at trial” the Court should not exercise its discretion to award the Plaintiff double costs.  Mr. Justice Voith agreed and provided the following analysis:

0] While the dominant objective of Rule 37B, found under the heading “Offers of Settlement”, is likely to promote early or reasonable settlement, additional factors, and in particular the conduct or honesty of one of the parties, can be relevant in considering whether to make an order of double costs under 37B(5)(b). This is apparent from numerous sources…

[13] Second, both the permissive nature of Rule 37B(5), which establishes that the new rule does not purport to create any automatic double cost consequences, and the non-exhaustive list of factors in Rule 37B(6) acknowledge the flexibility inherent in Rule 37B and the prospect that the Rule is amenable to furthering legitimate policy objectives apart from settlement…

[15] It is important to emphasize that in this case there is no issue of depriving the plaintiff of the ordinary costs to which she is entitled or of any award of special costs being made against her. Instead, the only issue is whether she should be entitled to double costs in light of various findings that I made in my Reasons for Judgment.

[16] Having regard to the foregoing authorities, and the underlying rationale that drives them, I can see no principled reason why a lack of candour or probity on the part of a party who gives evidence at trial should not constitute an “other factor the court considers appropriate” under Rule 37B(6)(d) in any potential award of double costs. An award of double costs, or a refusal to award such costs, is one of the means available to a court of signalling to litigants the types of conduct or behaviour it considers as either worthy of promotion or, conversely, as worthy of rebuke…

[20]        The same considerations apply to a party whose evidence is found by a court to be dishonest or designed to exaggerate or inflate a claim. Such a party should understand the seriousness with which that conduct will be regarded. It should similarly understand the potential consequences of that conduct, including its relevance to an award of double costs that the party might otherwise be entitled to.

[21]        In making these comments I am mindful that there are a great many cases where a party’s evidence is not accepted by the court for a variety of reasons. In many cases a party’s best recollection may simply not accord with other objective evidence. A party’s candid evidence may not, in light of the expert evidence, be accepted. Indeed it is not remarkable or unusual for a party to place a somewhat positive slant on given events. The mere fact that a party’s evidence is not accepted by the court, without more, does not engage the considerations I have identified. There is nothing in the conduct of such a party that warrants any reproach or criticism. It is, instead, the natural result of all cases where competing memories or competing versions of given events require resolution…

[24] In this case, the specific findings I referred to go beyond the “normal trial process” and do extend to a finding that the plaintiff sought to mislead the court and to significantly exaggerate the claim being advanced. Such conduct is worthy of censure and, in the circumstances of this case, disentitles the plaintiff to the award of double costs that she seeks.

This case serves as an important reminder of the crucial role that Plaintiff credibility plays in injury litigation.

In my continued efforts to get us all prepared for the New BC Supreme Court Civil Rules I will again point out that Rule 37B will be replaced with Rule 9 under the New Rules. The new rule uses language that is almost identical to Rule 37B which should help cases such as this one retain their value as precedents.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, highlighting an important truth in injury litigation - it is not up to ICBC’s doctors to decide if a Plaintiff’s pain complaints are legitimate, rather it is up to the Judge or Jury.

In today’s case (Sharma v. Didiuk) the Plaintiff was involved in 2004 rear end collision in Delta, British Columbia.  Fault was admitted by the rear motorist.   The vehicles did not suffer much damage but the Plaintiff alleged injury.

The Plaintiff’s doctor provided the following evidence with respect to her accident related injuries:

She sustained soft tissue injuries of her back, neck, and shoulders. This pain is present several times a week. It is aggravated by her work as a hairdresser. It is also aggravated by lifting or carrying. She has used Tylenol, heat, anti[‑]inflammatories, physiotherapy, and massage as treatment with some variable symptoms. Her recent pregnancy also aggravated her symptoms. Ms Sharma’s pain has become chronic recurrent in nature. With regular strengthening and stretching exercises she should continue to remain functional with pain. She may require future treatments of massage, physiotherapy, and accupun[c]ture, to manage her pain. She will likely remain prone to aggravations of her pain with prolonged standing, lifting of her arms to shoulder height, and carrying.

The Defendant arranged for an ‘independent medical exam’ with orthopaedic surgeon Dr. Boyle.  Dr. Boyle disagreed with the Plaintiff’s physician with respect to the extent of the Plaintiff’s injuries.  Dr. Boyle provided the following evidence:

[66] In his report Dr. Boyle concluded that the plaintiff had suffered a minor myofascial strain to her cervical spine with injury to ligaments, tendons and muscles, and that medical management for this should be in the form of stretching and strengthening exercises and the use of anti-inflammatories.

[67] He also said she may have suffered a very minor strain to her lumbar spine although she was asymptomatic at the time of his examination.

[68] He concluded there was no disability associated with her function as a hairdresser from 2005 onwards and the myofascial strain that she would have suffered would have been very mild at most with a very transient and limited effect on her.

[69] In his opinion there is no disability associated with the events surrounding the motor vehicle accident and no vocational or avocational limitations to be placed on her, with no need for any passive modalities of treatment.

[70] At trial he agrees that pain is usually considered chronic after two years, and that soft tissue injury may not exhibit any objective signs. Even if the soft tissue injuries heal in three months they can still produce current pain.

[71] However, in his opinion the probability that the plaintiff has these complaints ongoing is very low.

The Court went on to accept that the Plaintiff was injured and rejected Dr. Boyle’s opinion.  In awarding the Plaintiff $30,000 for her non-pecuniary damages Mr. Justice Truscott made the following comments:

[73] I also accept that the plaintiff’s complaints of continuing pain from her soft tissue injuries have exceeded the expected time period for recovery.

[74] I conclude that Dr. Boyle is saying in his own words that he does not believe the plaintiff when she says she still has continuing pain from injuries in this motor vehicle accident, almost six years later, as he found no basis for that in his examination and in his general understanding of the effects of minor soft tissue injuries.

[75] However, the fact is that I do accept the plaintiff’s evidence when she says she is still suffering pain from soft tissue injuries that she sustained in this motor vehicle accident of April 8, 2004.

[76] I therefore reject the opinion of Dr. Boyle that she does not have any further effects from those injuries, and I will assess the plaintiff’s damages on the basis that she continues to suffer some chronic pain from these injuries caused by the motor vehicle accident….

[92] I conclude the plaintiff’s present pain is intermittent and not continuous and that it depends on what activity she carries out and for how long she carries out those activities.

[93] She was able to continue her schooling full-time after the accident and was able to continue thereafter working close to full-time or at full-time at her hairdressing employments…

[98] Here I accept that the plaintiff’s ability to continue to work full-time has been accomplished with some difficulty because of her injuries as she has to stand and reach for long periods of time which brings about pain and discomfort and exhausts her by the end of the day. Her social activities have also been curtailed.

[99] I accept the prognosis of Dr. Rayavarapu and after reviewing the cases cited by both counsel, I consider a proper award for the plaintiff for non-pecuniary damages attributable to this motor vehicle accident to be $30,000. In assessing non‑pecuniary damages in this amount I have already reduced the full value of her injuries by $10,000 to account for the measurable risk of her pre-existing injuries continuing to affect her regardless of this accident.

Only an injured person truly knows the extent of their pain.  If a Defendant arranges for an independent medical exam and that doctor minimizes the extent of the injury cases such as this one serve as an important reminder that the Defence Medical Examiner is not the Judge and Jury.