“Extremely Problematic” Testimony Gives Rise to Modest Damage Assessment For Chronic Injury

Given the personal and subjective ways chronic injuries can impact an individual giving reliable evidence is important.  If adverse credibility findings are made in the course of an injury trial this can significantly impact a court’s overall view of the evidence.  Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, dealing with such a fact pattern.

In today’s case (Kaur v. Tse) the Plaintiff was injured in a 2016 collison.  The Defendant admitted fault.  The Court found that the Plaintiff suffered from chronic myofascial cervical pain and chronic mechanical pain localized on her coccyx as a result of the collision and some symptoms were ongoing at the time of trial.  However non-pecuniary damages were only assessed at $17,000 in part due to mitigation issues and further in part to credibility issues the court had with the Plaintiff’s evidence.  In reaching this quantum and criticizing aspects of the Plaintiff’s evidence Madam Justice Tucker provided the following reasons:

[100]     I find Ms. Kaur’s testimony extremely problematic. On several critical points her testimony in court differed significantly from that given at her March 2019 discovery, and her court testimony was then reluctantly walked back by her after being confronted with her earlier statements.

[101]     Further, while Ms. Kaur testified that she knew and understood that it was important to provide full and accurate information to Dr. Waseem, and testified that she had done so, I find she did not.

[102]     I have already made findings regarding her March 2019 Position. Ms. Kaur’s interview for Report #1 took place on April 14, 2019. Thus, she either overstated her actual symptoms to Dr. Waseem at the time of that interview or she failed to advise him that her symptoms had only been very recently worsened in caring for her mother. Either way, Dr. Waseem was given an inaccurate picture of her recovery trajectory.

[103]     It is patently evident that the information she provided to Dr. Waseem in February 2020 for his Report #2 was misleading. As she testified in court, Ms. Kaur had, in fact, regained her March 2019 position by mid-November 2019. I find her February statements to Dr. Waseem in February 2020 were knowingly and deliberately misleading.

[104]     Ms. Kaur’s suggestion that she denied having any emotional issues from the accident at her March 2019 discovery because she felt culturally obliged to be stoic is not credible. A few weeks after the accident, she readily told Dr. Gan that she felt down, frustrated and guilty. She obtained a note from Dr. Ngui to support her assertion of care-giver burnout in support of her request to work from home full-time while looking after her mother. She applied for leave from work and disability benefits based on her emotional state after her mother’s death. She attended grief counselling after her mother’s death. I find Ms. Kaur’s answer on discovery was accurate, not stoic.

[105]     With regard to Ms. Kaur’s unwillingness to supervise her daughter’s efforts to learn how to drive, the task is objectively stressful, and likely more so than usual given that her daughter suffers from anxiety.

[106]     The evidence as to whether Ms. Kaur has herself resumed driving is conflicting – she told Dr. Waseem in 2019 that she had, but denied both the statement and the fact in court. No explanation was proffered as to why Dr. Waseem would have made a specific note of something that she did not say. In any event, there is no evidence before me about how much she drove before the accident or whether she was ever a confident driver.

[107]     The evidence discloses that her mother’s illness and death were exceptionally hard on Ms. Kaur and the family. Ms. Kaur was very close to her mother, cared for her personally throughout most of her illness, and was grief-stricken following her death. The entire family had to adjust to these circumstances. For example, prior to April 2019, Ms. Kaur’s mother did most of the cooking. Ms. Kaur’s daughter stepped up to that task when her grandmother deteriorated, while Ms. Kaur was, in turn, called upon to act as her mother’s care-provider.  

[108]     Aside from the practical and emotional impacts of Ms. Kaur’s mother’s illness and death during 2018 and 2019, the testimony regarding family dynamics discloses no more than the friction and inconvenience of everyday life. As Mr. Krishna observed, teenagers are teenagers. Children are traditionally given more responsible chores as they age. Ms. Kaur’s children were 14 and 18 at the time of trial, whereas they were 10 and 14 at the time of the accident. It is not surprising that they contribute more to the household now than they did in 2015, especially given Ms. Kaur need to act as a care-provider during her mother’s illness and her emotional condition following her mother’s death….

[156]     Ms. Kaur has few and minor limitations as a result of the accident. She continues to work as before, but now consciously changes her position during the course of the day and takes breaks to stretch or walk. She makes occasional use of a stand up desk or raised work surface. She says she cannot remain seated for long in a chair or a car seat, but the fact that she has not been motivated to try the recommended coccyx donut persuades me that any actual impact is modest.

[157]     Ms. Kaur’s favourite activity is walking. Her evidence is that she used to walk 45-60 minutes on weather-permitting days. In 2018, she reported to her massage therapist that she was back to walking an hour a day. Ms. Khaira testified that the walks they presently go on are 45-60 minutes long. Ms. Khaira testified that she and Ms. Kaur do not walk as long, go as often, or proceed as briskly as they used to, and that they avoid hilly areas.

[158]     Between the date of the accident and the date of trial, Ms. Kaur was hampered by plantar fasciitis, which she described as so painful to her that at times she could not put her foot down on a carpeted floor. She had physiotherapy treatment on her foot from mid through late 2016, and then saw a podiatrist for further treatment for a significant portion of 2017.

[159]     While she claimed in testimony that her foot pain resolved in 2017, in April 2019 she told Dr. Waseem that her foot had been causing her pain for the last year. Dr. Waseem made an objective observation of plantar fasciitis in his Report #1. On the evidence, I conclude that notwithstanding her testimony, her foot caused her pain for a period of at least 12 months during 2018-2019.

[160]     In total, Ms. Kaur suffered unrelated foot pain over at least two and a half years of the four year period between accident and trial. I find that pain would have negatively impacted her participation in recreational and other activities (e.g., walking, tennis, and snowshoeing) irrespective of the accident.

[161]     Ms. Kaur can perform household duties, although presently not in the same manner and on the same schedule as prior to the accident. I accept that Ms. Kaur is very particular about the state of her home and that her inability to keep house as she did before causes her frustration. However, the amount of time she was called upon to dedicate to looking after her mother in 2019 would also have been a contributing factor.

[162]     I have concluded Ms. Kaur has no emotional issues as a result of the accident, and that the accident has had no impact on her relationships.

[163]     Overall then, Ms. Kaur’s injuries were minor from the outset and she currently has only intermittent pain at significant intervals. Further, her present symptoms – such as they are – are likely to be significantly improved by taking recommended treatment.

[164]     The facts of this case are somewhat similar to those in Pond, but they are also akin to those in Cegielka, in that the plaintiff’s post-accident situation has been very significantly impacted by facts and events wholly independent of the accident. The defendants are only responsible to the extent that they added to the burden that would have existed in any event.    

[165]     I consider the amount of $20,000 appropriate. Applying the 15 percent deduction for the failure to mitigate found above, the non-pecuniary award is $17,000.