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Defence Doctor's "Bald Proposition" Minimizing Collision Related Injuries Rejected

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Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, rejecting defense expert evidence minimizing the connection of chronic pain issues to a motor vehicle collision.
In today’s case (Worobetz v. Fooks) the Plaintiff was injured in a 2010 collision and continued to experience symptoms at the time of trial.  The defendant admitted fault but denied the extent of the Plaintiff’s injuries.  In support of his case the Defendant retained a physician who gave evidence that the Plaintiff’s lingering symptoms were likely related to deconditioning and being overweight. In rejecting this evidence Mr. Justice Joyce provided the following critical comments:

[91]         Dr. Grypma’s opinion appears to be based substantially on two things: first, the lack of evidence of any structural injury; and second, her lack of conditioning and mild obesity. Dr. Grypma suggests that if Ms. Worobetz had suffered an injury other than a mild soft tissue injury, she would have experienced immediate pain of such intensity that she would have sought out immediate attention at an emergency room. I am not persuaded, however, that a person need sustain a serious structural injury in order to develop serious and chronic pain following a trauma such as an Accident. There are simply too many cases where persons have been found to have developed chronic back pain following a motor vehicle accident in the absence of objective evidence of structural damage to accept Dr. Grypma’s bald proposition.

[92]         Dr. Grypma’s opinion that Ms. Worobetz suffered only a mild injury that would have healed completely within a few months is contradicted by the evidence of Ms. Worobetz concerning her symptoms and how they affected her functioning, which is supported by the evidence of a number of other specialists who have treated Ms. Worobetz and followed her progress over a long period of time.

[93]         In my opinion, it is a relevant factor that Ms. Worobetz developed her pain complaints very soon after the Accident and that they progressed, with little change, until the present time. I accept that a mere temporal connection between an accident and the development of pain is not determinative by itself that the Accident caused the pain, but it is, nonetheless, a relevant factor. I also accept that the court must be cautious in relying on the subjective complaints of a patient, where there is no other objective evidence to support those complaints.

[94]         However, in this case, there is more evidence than simply subjective complaints and a temporal connection between those complaints and the Accident. I accept that Ms. Worobetz’s symptoms of pain are real and honestly felt. The manner in which they have impacted her functioning is supported by evidence of her husband, mother, co-worker and the woman for whom Ms. Worobetz acts as a support teacher. There is a strong body of expert opinion evidence in this case from specialists in a number of fields to support a finding that Ms. Worobetz’s ongoing pain was caused by the Accident. Those specialists have spent a great deal of time examining Ms. Worobetz, investigating her complaints and providing treatment. In my respectful view, their evidence is to be preferred over that of Dr. Grypma, who conducted a single, rather brief examination and a review of her medical records.

[95]         Dr. MacInnes, in particular, puts forward an explanation as to how Ms. Worobetz could have developed the pain at various sites in her body as a result of a rather modest soft tissue injury that one would ordinarily think would resolve quite quickly: central sensitization. Dr. Grypma admits that he is not qualified to comment on that topic, so he is not able to agree or disagree that it is a reasonable explanation for Ms. Worobetz’s continuing symptoms.

[96]         In summary, I find that but for the Accident, Ms. Worobetz would not be suffering the ongoing symptoms that she feels and her daily activities of life and ability to work would not be affected the way they are. She is less able to enjoy the social and recreational pursuits that she used to enjoy. She is less able to carry out the functions of a mother and wife, compared to her life before the Accident. She no longer has the same ability to work at her chosen career as a teacher because of the Accident.

Formal Offer Bested by $920 Fails To Trigger Double Costs

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing if double costs should be awarded where a formal settlement offer was bested by a modest basis.
In today’s case (Saopaseuth v. Phavongkham) the Plaintiff was injured in a 2011 collision.  Prior to trial the Plaintiff provided a formal settlement offer of $44,000.  At trial this amount was exceeded by $920.  In declining to award post offer double costs Mr. Justice Bernard provided the following reasons:

[72]         I am not satisfied that the plaintiff’s formal offer was one that the defendant ought reasonably to have accepted. The offer was not broken down into its constituent elements and it was, therefore, difficult to evaluate. The plaintiff’s claim was under five heads of damage; therefore, a breakdown would have greatly assisted the defendant in evaluating the offer. Also, as in Barnes, the defendant had a legitimate defence to the plaintiff’s claim; indeed, the plaintiff sought $45,656 for loss of future earning capacity at trial and was ultimately awarded nothing under this head of damage.

[73]         As to whether the plaintiff’s formal offer provided the defendant with a genuine incentive to settle or not, the offer was for $44,000 and the plaintiff ultimately sought $120,596 at trial. The latter amount had not been set out in the pleadings and was not quantified until the start of the trial. There was, therefore, an insufficient basis for the defendant to evaluate whether the $44,000 offer was a genuine compromise or not.

[74]         The ultimate award was $44,920. Rule 9-1(6)(b) permits the court to compare the offer to settle with the final judgment. Here, the award was greater than the offer by only $920, or approximately 2%. This marginal difference suggests that little weight should be given to this factor.

[75]         As already observed, the defendant had legitimate defences to the claim and the damages for non-pecuniary damages were significantly reduced by new information that was elicited from the plaintiff’s expert witness in his trial testimony. The plaintiff also recovered nothing for his claim of lost earning capacity. It is noteworthy that there was competing expert evidence that made quantifying damages difficult. I am satisfied that in view of these matters an award of double costs would unduly punish the defendant for mounting a meritorious defence.

Non Pecuniary Damages Assessed in Mild and Moderate Brain Injury Claims

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Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for two separate traumatic brain injury claims.
In this week’s case (Afonina v. Jansson) the Defendant lost control of his vehicle and was involved in a single vehicle collision.  Two of his passengers suffered traumatic brain injuries, one mild and one moderate, which resulted in long term complications.
In assessing non-pecuniary damages of $195,000 for one Plaintiff’s permanent mild traumatic brain injury Mr. Justice Groves provided the following reasons:
[65]         Alla suffered broken ribs, a pneumothorax, and a number of soft tissue and similar related type injuries as a result of the accident.  She was hospitalized for a short period of time and it took a number of months to recover from the significant soft tissue injuries.  Dr. Travlos’ report reported that her emotional health continues fluctuate and this impacts her overall functioning.  Most notably, she suffered a mild traumatic brain injury which, as per Dr. Travlos’ report, will affect her for the rest of her life. ..

[70]         Having reviewed the authorities provided by counsel for the plaintiff, I find them to be within the range of appropriate orders.  The numerous cases cited suggest a range of general damages in the amount of $200,000-$225,000.  A number of the plaintiffs are within eight to ten years of Alla’s age; however, the bulk of them are people who are completely non-employable, and I find that Alla has some modest residual work ability. 

[71]         In regards to those cases provided, I find Burdett v. Eidse, 2011 BCCA 191 and Young v. Anderson, 2008 BCSC 1306 most persuasive.  In Burdett, the Court of Appeal upholds a non-pecuniary award of $200,000 where a 58 year old, formerly high functioning contractor suffered severe cognitive impairments including an inability to focus, sleep or multitask as a result of the mild traumatic brain injury caused by his motor vehicle accident caused mild traumatic brain injury.  In Young, the court awards $200,000 where a 51 year old experienced a constellation of symptoms including a mild traumatic brain injury which rendered him unable to continue in his chosen profession.

[72]         In addition to the pain and suffering from the broken ribs and soft tissue injuries, most of which had resolved within six months of the accident, I note that there are a number of significant long term damages which Alla will suffer as a result of the accident.  Her mild traumatic brain injury is significantly disabling.  She was, as noted, a trained engineer with university training in the area of finances and accounting.  She now finds herself a somewhat confused and disoriented woman, someone with an inability to multi-task to any great degree.  She has to put mechanisms in place to remind herself about her responsibilities.  Although she still has good judgment, she lacks an ability to focus and to organize.  These are matters which will plague her for the rest of her life and will make the task of working and the task of providing for one’s basic physical needs, somewhat of a challenge.  Although there is only modest physical manifestations of her injuries at this stage, the fact that her brain is not functioning as it used to is considerably disabling. 

[73]         In all of the circumstances having reviewed the case authorities provided, I fix non-pecuniary loss at $195,000. 

In assessing non-pecuniary damages at $300,000 for the second plaintiff who sustained a permanent moderate brain injury the Court provided the following reasons:

[149]     Rather, I find that much of the difficulty Alissa finds herself in is as a direct result of the accident.  At that time, she was rendered unconscious and suffered seizures.  Alissa has sustained irreversible and permanent damage as a result of the moderate traumatic brain injury she suffered in the accident.  She was young at the time of the accident and her life has been irrevocable altered in a negative way.  She will not recover from the difficulties she currently has.  They will plague her for her entire life.  They are, to a great degree, vast and all encompassing.  They affect everything she does.  Absent the injuries, I have concluded that Alissa would have successfully completed some post-secondary education in her chosen field and by 2014 would have been in the work force in a full-time capacity.  Although I do note that she does have some limited capacity to earn a modest amount of income, her former goals and chosen field of work are no longer open to her. 

[150]     In all these circumstances, the appropriate award for non-pecuniary damages is an award close to the rough upper limit.  I have concluded that $300,000 is an appropriate assessment for non-pecuniary damages. 

Parents Held Responsible For Child's Destruction of School Property

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, holding parents liable for damages caused to school property by their child.
In today’s case (Nanaimo-Ladysmith School District No.68 v. Dean) the Defendant played a prank at school by attempting to attach a lock to a sprinkler head.  While doing so “the red filament inside the sprinkler head was disturbed and, as sprinkler heads are intended to operate, it immediately began spraying water.”  This caused over $48,000 in damage to school property.
The Plaintiff was found negligent and he and his parents were ordered to pay back the money based on the operation of s. 10 of the School Act which reads as follows:
“If property of a board or a francophone education authority is destroyed, damaged, lost or converted by the intentional or negligent act of a student or a francophone student, that student and that student’s parents are jointly and severally liable to the board or francophone education authority in respect of the act of that student.”
Madam Justice Fitzpatrick noted this is a harsh result for the parents who had nothing to do with the damage but the legislative requriements are clear.  In reaching this decision the Court provided the following reasons:
[36]         What s. 10 seeks to accomplish is to impose statutory liability for the intentional actions of a student that cause damage to the school, which is a liability imposed beyond whatever liability there might be at common law. The section accomplishes a shifting of risk from the school to the student and that student’s parents arising from the actions of the student. I do not consider that a plain reading of s. 10 results in any other interpretation or a “reading in” of the meaning of “intentional act”, as the Deans assert…
[38]         In my view, there is no ambiguity in s. 10. It simply refers to an “intentional … act”. Accordingly, I conclude that the legislative intention, however draconian it may be, is that the student need not have intended to cause damage by his or her act. The parties agree that, if this interpretation prevails, the parents are liable by a plain reading of s. 10…

[93]         In my view, the School District has proven its case in terms of the applicability of s. 10 of the School Act to the circumstances here.

[94]         I am sure that this is a very unfortunate result for the Dean family and perhaps it will be for other families in the future. This was clearly the result of a young boy misbehaving and thinking that the only grief to come of it would be to Ben and perhaps the janitor in removing the padlock. Obviously, more dire consequences followed. However, if there is to be any change to this provision in the School Act, that is a matter for the legislature, not the courts.

[95]         The action is allowed and judgment is granted against all defendants in the amount of $48,630.47, plus court order interest and costs to be assessed.

Why the Government Could (And Should) Put Me Out of Business

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With New Year’s around the bend one can’t help but think about the future.
I am a personal injury lawyer.  I sue people for a living.  The more people that are injured through the carelessness of others, the more potential business I have.
The vast majority of my business comes from car crashes.  The reason is simple, crashes cause serious injuries and there are insurance companies to fight over fair compensation.  A person drives carelessly and kills or injures another.  Those victims hire me to represent them.  That is my business.  Take away careless driving and you take away my root business, and from the perspective of the road using public that is a good thing.
So how can the government put me out of business (or at least drastically reduce it)?  Eliminate car crashes.  From here we have to look at the root cause of crashes.  Be it speeding, impaired driving, driving unsafely for the conditions, distracted driving, you name it, all of these categories fit into the umbrella of ‘human error‘.  Eliminate human error from the equation and you eliminate the vast majority of crashes.
Enter technology.  Enter Google’s driver-less cars.  These cars seek to take human error out of the driving equation.  They have been under development for a few years and now have been cleared for the road in California, Nevada, Florida, Michigan and Washington, DC.   Once perfected this technology can put a serious dent in roadway injuries/fatalities and collaterally my business.
Technology has put a lot of people out of business.  Lawyers generally feel immune from such threatened  changes but recent history has demonstrated that no professions are safe in the face of exponential technological innovation.  I have been addressing this topic for over a year, be it on twitter, at the office, at seminars, wherever.  Apparently I am not the only one with New York personal injury lawyer Eric Turkewitz authoring an article on his blog addressing this which even caught the Wall Street Journal’s attention.
To date no Canadian Provincial government has cleared the way for testing such technology on our roads.  Presently ICBC is focused on creating an ‘Anti Fraud Solution‘  Now I hate insurance fraud and so should you, but you know what’s better than tackling insurance fraud?  Tackling the root causes of crashes.  Food for thought for 2015.
 

Road Rage Intimidation Incident Leads to Liability for Subsequent Crash

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Reasons for judgement were released earlier this week demonstrating liability after a motorist intimidated a cyclist who subsequently crashed.
In this week’s case (Davies v. Elston) the Plaintiff was an experienced cyclist.  As he a passed parked truck whose mirror extended into the bike lane the Plaintiff’s son who was riding with him commented about the truck.  The truck’s owner heard this, jumped in his vehicle and drove after the cyclists to confront them.  Words were exchanged during which time the truck came close enough that the Plaintiff placed his hand on the passenger side window of the vehicle. As the truck drove away the Plaintiff lost control of his bicycle and fractured his pelvis.
The Defendant argued the Plaintiff was solely at fault for the incident.  Madam Justice Griffin disagreed and found the defendant fully responsible.  In reaching this conclusion the Court provided the following reasons:

[167]     As for whether Mr. Elston’s conduct was negligent, I find that the defendant fell below the standard of care of a reasonable and prudent driver, in driving alongside the two cyclists and yelling at them, while so close to the bike lane that it made it intimidating, threatening and unsafe for the cyclists; and then in addition in pulling away quickly, without warning, with Mr. Davies so close by and with his hand on the truck. 

[168]     It is obvious as a matter of common sense that such driving conduct was without reasonable care for the safety of the cyclists and was negligent.

[169]     No matter how aggravating a cyclist’s behaviour might be, and I find there was nothing aggravating about the Davies’ conduct, a driver of a motor vehicle can never be justified in deliberately using a motor vehicle to confront a cyclist who is riding a bike.  Confrontation creates a serious risk of harm to the cyclist which is way out of proportion to anything the cyclist might have done.  A driver of a motor vehicle is not entitled to impose a penalty of death or serious bodily harm on a cyclist just because the cyclist was rude or broke a traffic rule. 

[170]     It has to be remembered that motor vehicles have four wheels, automatic brakes, seatbelts, and the driver is nicely encased in a heavy steel cage and that a person on a bicycle is not in a situation which is the least bit comparable, even if going the same speed as a vehicle.  A cyclist cannot stop on a dime, is vulnerable to losing balance, and can be seriously injured or killed if he or she makes contact with a motor vehicle or falls at a high speed. 

[171]     Mr. Elston and Jim Davies knew this at the time that Mr. Elston was confronting Jim Davies.  This is what made the situation so unnerving for Jim Davies and this was entirely foreseeable to Mr. Elston who wished to intimidate him.

[172]     I conclude that but for Mr. Elston’s aggressive and negligent conduct, Jim Davies would not have fallen from his bike.  Mr. Elston’s negligence therefore caused the accident and resultant injuries.

 

Multiple Medical Exams When Initial Experts Come up Short

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There is wide discretion for the BC Supreme Court to order a plaintiff to be examined by multiple defence expert witnesses where the alleged injuries call for it.  While the law does not allow multiple exams to be conducted simply to get “the best expert” on each area in dispute, where initial experts come up short due to limitations in their area of expertise further examinations may be allowed.  This was demonstrated in reasons released today.
In today’s case (Garford v. Findlow) the Plaintiff was injured in two collisions.  In the course of her lawsuit she agreed to be examined by three defence physicians, namely an orthopedic surgeon, a dentist and a neurologist.  When the Defence asked for a further exam with a psychiatrist the Plaintiff drew the line.  The Court found, however, despite the multiple exams a further expert was warranted as the existing experts pointed to psychiatric issues playing a role in the Plaintiff’s condition and conceded this was an area out of their expertise.  In allowing the exam Master Bouck provided the following reasons:

[37]         In this case, I find that Dr. Miller’s examination is not an attempt to bolster an earlier opinion of another expert. Neither Drs. Piper, Gershman nor Dost provide a medical opinion on the plaintiff’s mental health, nor do any of them address the cause of the mental health complaints. These physicians comment on Ms. Garford’s mental health condition but no diagnosis is made with deference given to a psychiatrist to make such findings. It is pure speculation that Dr. Stewart-Patterson will provide a diagnostic opinion. Regardless, Dr. Stewart-Patterson’s credentials do not closely resemble those of a psychiatrist.

[38]         Given these findings, I am not at all certain that the defendants are required to meet the higher standard stipulated in Hamilton v. Pavlova. None of the authorities suggest that there is an absolute limit on the number of independent medical examinations that may be ordered under Rule 7-6(2). More to the point, all other assessments or examinations have been directed towards the plaintiff’s physical rather than mental condition.

[39]         On the question of timeliness, the defendants say that they will be in a position to serve any expert opinion by February 2, 2015. Whether the plaintiff will be able to assess and respond to any report remains to be seen. Obviously, the court was persuaded in De Corde that the timeliness factor weighed against granting the IME order. However, as the court determined in Critchley v. McDiarmid, 2009 BCSC 28, the order requiring a plaintiff attend an IME relatively close to trial does not necessarily mean that the trial will be adjourned or the plaintiff prejudiced: paras. 11?14.

[40]         In my view, the defendants are not required to show any exceptional circumstances as this is not an application for a subsequent examination by an expert in the same field or a multidisciplinary assessment as was the case in Wildemann v. Webster.

[41]         In terms of proportionality, the plaintiff has been out of the workforce for four years and is not expected to return to her pre-accident employment as a dental assistant. It is apparent that there will be a significant claim for both past and future income loss. The plaintiff’s claim for special damages is also indicative of the amount involved. I accept defence’s unchallenged submission that Ms. Garford will be seeking damages well in excess of $100,000 at trial. As with the court in Kim v. Lin, I find that the SCCR 1-3 factors in this case favour the order being made.

[42]         The plaintiff may not be pursuing a psychiatric opinion at this time, but she clearly blames the accidents for her mental health condition and necessity for psychological counselling. In my view, the task of identifying let alone proving other causes or sources for these mental health issues cannot be accomplished by simply cross-examining the plaintiff at trial.

[43]         In conclusion, I find that the plaintiff’s attendance at an IME with Dr. Miller will put the parties on an equal footing in terms of addressing diagnosis and causation of the plaintiff’s mental health condition. The examination may also address the interplay of the plaintiff’s mental and physical complaints.

Rheumatoid Arthritis Claim Rejected Following Low Velocity Collision

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Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, rejecting the allegation that a collision caused a Plaintiff to suffer from rheumatoid arthritis.
In today’s case (Kabani v. Lee)  the Plaintiff was involved in a relatively modest collision in 2010.  The Defendant was responsible for the crash.  The Plaintiff argued that the collision caused her to develop rheumatoid arthritis, a “painful auto-immune disease that bilaterally attacks the joints in the human body“.  In rejecting this argument Mr. Justice Ball provided the following reasons:

[25]         In Hunt v. Ugre, 2012 BCSC 1704 at para. 121, Justice Dardi notes that the court must be cautious when inferring causation from a temporal sequence (i.e. from a consideration of pre-accident and post-accident condition). Dardi J. states:

In cases where causation is asserted primarily on a temporal relationship between the negligent conduct and [the] injury in question, the authorities mandate that a “close scrutiny of the evidence is required because the inference from a temporal sequence to a causal connection is not always reliable”.

[26]         The potential for a link between trauma and rheumatoid arthritis was canvassed in a medical discussion paper (mentioned above) entitled “Trauma and Inflammatory Arthritis” prepared by the Ontario Workplace Safety and Insurance Appeals Tribunal in September 2008 by Dr. Dafna D. Gladman, an acknowledged expert in rheumatology and internal medicine with a particular interest in inflammatory arthritis (filed as Exhibit 7 at trial). Dr. Gladman’s publications and teachings were referred to and relied upon by Dr. Yorke in his evidence. At page 2 of the paper, Dr. Gladman discusses the etiology and pathogenesis of the disease. Dr. Gladman notes at the outset that “[t]he cause of rheumatoid arthritis is unknown.”  At page 5, under the heading “Role of Trauma”, Dr. Gladman states “… a specific role for trauma in the development of rheumatoid arthritis has not been proven.”

[27]         Dr. Yorke presents a clear opinion against trauma being capable of causing rheumatoid arthritis. It is of some interest that his scientific opinion in this regard has changed over the years, evidenced by the expert opinion he rendered in Charbonneau v. ICBC, 1991 New Westminster Registry C890102 (B.C.S.C.), where Justice Mackinnon stated that Dr. York was “emphatic” that the plaintiff had rheumatoid arthritis and that it was precipitated by an accident.

[28]         The only medical evidence suggesting a link between the Accident and the onset of rheumatoid arthritis is Dr. Watterson’s opinion that the trauma from the Accident played a “possible role” in the development of rheumatoid arthritis. A “possible role”, when considered alongside the other medical evidence indicating that a link between trauma and rheumatoid arthritis has not been proven, does not satisfy me that the Accident caused or contributed to Ms. Kabani’s rheumatoid arthritis.

[29]         Regardless of any temporal link, there is simply no medical opinion upon which the Court can rely in this case to establish on a balance of probabilities the necessary causal link between the Accident and Ms. Kabani’s rheumatoid arthritis. The reports received by Dr. Witherspoon from Dr. Kelsall support the conclusion that the Accident did not cause Ms. Kabani’s rheumatoid arthritis.

$75,000 Non-Pecuniary Damages For Chronic Pain Following Three Collisions

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing fault and damages following a series of collisions.
In today’s case (Shinzay v. McKee) the Plaintiff was involved in three collisions.   The Defendants were found liable for each of these.  The Plaintiff suffered chronic soft tissue injuries which persisted to the time of trial and resulted in chronic pain symptoms which were expected to need continued management.  In assessing non-pecuniary damages at $75,000 Madam Justice Sharma provided the following reasons:

[93]         Based on all of the above, I make the following findings on the balance of probabilities:

a.               Mr. Shinzay continues to suffer pain that affects, but does not disable him;

b.               Mr. Shinzay will more likely than not require physiotherapy, massage therapy, and pain medication in the future to manage flare-ups of his pain;

c.               Mr. Shinzay needs to follow a conditioning program which will improve his pain management;

d.               Mr. Shinzay had a degenerative spinal condition that pre-existed the First Accident;

e.               The accidents caused Mr. Shinzay to suffer soft tissue injuries; and

f.                The accidents materially contributed to his pain because it trigged his pre-existing spinal degeneration to become symptomatic.

…

[98]         As already noted, I find Mr. Shinzay has not exaggerated his symptoms. His resilience for work should not be mistaken for a sign that his injuries were mild. In particular, the Second and Third Accidents required emergency personnel to extract him and he was taken away on a stretcher.

[99]         Overall, I find that Mr. Shinzay’s circumstances justify an award at the moderate level of the appropriate range. Among the cases referred to me, I discuss below the most helpful ones because of the similarity of some of the facts or circumstances to this case. These cases identify a range of $60,000 (the defendants’ assessment) to $90,000 (the plaintiff proposed $100,000)..

[100]     In these circumstances, I find $75,000 to be an appropriate award.

Brain Injury Claim Dismissal Upheld Following Credibility Concerns

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Reasons for judgement were released today (Minhas v. Sartor) by the BC Court of Appeal upholding a trial judgement which rejected a claim for an alleged “severe and permanent brain injury” following concerns about the Plaintiff’s credibility.
In upholding the trial judgement the BC Court of Appeal provided the following reasons demonstrating how the negative credibility finding impacted the injury claim:
[18]        In the main, the assumptions relied upon by the doctors in reaching their opinions derive from Mr. Minhas’s account of himself. However, the judge found that Mr. Minhas was dishonest, that his evidence was not to be believed, and that the history he provided to the doctors was inaccurate. She said:
[111]    I am satisfied that all of Mr. Minhas’s testimony – with the possible exception of statements against interest – must be regarded with scepticism and given little or no weight. I am also satisfied that to the extent any expert’s opinions are based in whole or in part on information provided to the expert by Mr. Minhas, the opinions of that expert must be carefully scrutinized and are likely to be unsupported.
[112]    I am reminded of the statement made by Justice Southin, as she then was, in Le v. Milburn, [1987] B.C.J. 2690, as follows:
When a litigant practices to deceive, whether by deliberate falsehood or gross exaggeration, the court has much difficulty in disentangling the truth from the web of deceit and exaggeration. If, in the course of the disentangling of the web, the court casts aside as untrue something that was indeed true, the litigant has only himself or herself to blame. (para. 2).
[19]        The judge’s conclusion of Mr. Minhas’s veracity and reliability, with respect, was not surprising given the many instances of dishonesty on his part evident in the record. That evidence includes different versions given by Mr. Minhas at different times as to his education, different versions advanced by him of his work history in Alberta, his routine filing of false tax returns with Revenue Canada, an account made by him to an insurance adjuster (in a previous motor vehicle accident) that he had been working when his tax return did not reflect any employment, his admission that he was prepared to threaten physical harm to get what he wanted, his filing a false claim (or claims) with Workers’ Compensation, his travel outside the country while claiming he was entitled to disability benefits, his testimony he received a generous dowry from his wife’s family in contradiction to his wife’s evidence that her family did not pay a dowry, his preparation of a false resume, and his provision of false employment references. This is only a partial listing of the inaccuracies and untruths that riddle Mr. Minhas’s account of his pre-accident life and his personal history.
[20]        Also germane to the assessment of the existence of brain injury is evidence that Mr. Minhas was not the easy-going person before the trial he and others testified he was. The pre-accident evidence demonstrates incidents in which Mr. Minhas was threatening or aggressive to others…
[24]        There is no real challenge taken to any of the judge’s descriptions of the evidence, although there is explanation proffered. But it was up to the judge whether to accept the explanation, and it is not up to us. As this was a case highly dependent on credibility findings, it seems to me that if the claim of brain injury was to be won, it was to be won at trial. Without the finding of fact that Mr. Minhas had suffered a brain injury, it is simply premature to analyze the theories of causation.
[25]        I see no basis upon which we may interfere with the judge’s conclusion that Mr. Minhas did not prove he had sustained a brain injury in, or caused by, the accident. I would dismiss the appeal.