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More on Injury Claims, Credibility and Cross-Examination

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When personal injury claims go to trial a Plaintiff will have their allegations of injury tested through cross-examination.  If this process reveals enough inconsistencies in the Plaintiff’s direct testimony it can result in a poor finding of credibility by the trial judge which in turn will likely effect the outcome of the case.  This was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.
In today’s case (Dempsey v. Oh) the Plaintiff was injured when his bicycle was struck by a van driven by the Defendant.  The Plaintiff sued for damages.  The issue of fault was admitted by the motorist leaving the Court to deal with the issue of value of the claim.  The Plaintiff sought damages for a variety of alleged losses including past and future loss of income.  The Court dismissed much of the Plaintiff’s claim finding that the accident caused little more than a mild whiplash injury.
The main reason behind this result was an unfavourable finding of the Plaintiff’s credibility.  Mr. Justice Myers found that the Plaintiff was not candid about his injuries and provided the following critical reasons:

[38]    As Mr. Dempsey’s counsel acknowledged in argument, Mr. Dempsey’s credibility is central to this case.  Having reviewed the medical evidence, I will now comment on that.

[39]    Mr. Dempsey’s description of his condition prior to his accident was contradicted by the clinical records of Dr. Mintz, the cross-examination of Dr. Mintz and the cross-examination of Mr. Dempsey.  I am mindful of the cautions with respect to the use of clinical records that N. Smith J. helpfully summarised in his recent decision in Edmondson v. Payer, 2011 BCSC 118, which was released after the case at bar was argued.  However, the differences between the clinical records and Mr. Dempsey’s testimony are not minor; in fact, they are quite glaring and significant.  Further, Dr. Mintz testified as to his notations and Mr. Dempsey adopted them in his cross-examination.

[40]    It is apparent from the medical records and evidence that Mr. Dempsey greatly downplayed his back problems prior to the accident.  In his direct evidence, he described it as minor aches and pains.  When confronted with his medical history he acknowledged that it was at times “excruciating”.

[41]    The description as “minor” also flies in the face of the pain medications that he was taking.  In his direct examination Mr. Dempsey said that he often threw away expired medication.  That evidence was contradicted in cross-examination.

[42]    When Mr. Dempsey was cross-examined on his pre-accident medical history, his constant response was to admit that he had had pain, but that he was able to manage it with the pain medication and therefore function.  However, even that was not correct.  On cross-examination, he agreed that the clinical records of Dr. Mintz were accurate and include complaints of inability to sleep, drive, sit and to stand on his right leg.

[43]    In his direct examination, Mr. Dempsey was adamant that he played hockey up to the time of the accident.  However, on cross-examination, when confronted with the medical records, he agreed that he had given it up several years before the accident due to concerns about his back.

[44]    Mr. Dempsey downplayed his use of heroin, and as I said, he falsely stated that he had stopped using it in April 2004 (above, para. 24).

[45]    Mr. Dempsey blamed the accident for his alleged near-complete inability to work for an extended period after the accident.  However, he never described why he could not use the phone to add to or farm his database and why he could not drive.  Simply put, while Mr. Dempsey said he had pain he never specified how it stopped him from being able to perform his job functions.

[46]    In the context of the defendant’s theory that Mr. Dempsey was spending time running another business he had incorporated rather than spending time on his real estate practice, he was cross-examined closely on a frequently recurring cryptic entry in his Day-timer.  He said he did could not remember what that referred to.  Given the number of times the entry appeared that is not credible, whether or not it did relate to another business project.

[47]    I do not find Mr. Dempsey to be a credible witness.  There is no reason to believe that he was more truthful about what occurred after the accident than he was about his condition before it.

For more on this topic you can click here to read my archived posts dealing with Plaintiff credibility in BC injury litigation.

bc injury law, credibility, cross examination, Dempsey v. Oh, Mr. Justice Myers

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