Skip to main content

"The Long Tradition of Judicial Copying" Discussed by the Supreme Court of Canada

Written by admin on . Posted in Uncategorized.

In reinstating a successful damages award, the Supreme Court of Canada had the opportunity to discuss if and when it is ok for a trial judge to copy a lawyer’s submissions in their reasons for judgement.
In today’s case (Cojocaru v. British Columbia Women’s Hospital and Health Centre) the infant Plaintiff suffered brain injury during birth at BC’s Women’s Hospital and Health Care Centre.  He successfully sued for malpractice and was awarded damages for his past and future care needs and other losses.  The trial judgement “reproduced large portions of the submissions of the plaintiffs.“.  The Court of Appeal overturned the judgement finding this judicial “copying” displaced ‘the presumption of judicial integrity and impartiality’.,
The Supreme Court of Canada disagreed and reinstated the damages awarded at trial (although differed in who the liable parties were allowing the cross appeals of some of the defendants).  In doing so Canada’s highest Court provided the following reasons discussing “the long tradition of judicial copying“.
[10]                          This was a complex case involving many issues. The trial judgment, rendered some time after a lengthy trial, consisted of 368 paragraphs.  Only 47 were predominantly in the judge’s own words; the balance of 321 paragraphs was copied from the plaintiffs’ submissions.  This raises the concern that the trial judge did not put his mind to the issues, the evidence and the law as he was sworn to do, but simply incorporated the plaintiffs’ submissions.
[11]                          The question before us is whether a trial judge’s decision should be set aside because his reasons incorporate large portions of material prepared by others, in this case the plaintiffs…
[35]                          The concern about copying in the judicial context is not that the judge is taking credit for someone else’s prose, but rather that it may be evidence that the reasons for judgment do not reflect the judge’s thinking. They are not the judge’s reasons, but those of the person whose prose the judge copied.  Avoiding this impression is a good reason for discouraging extensive copying.  But it is not the copying per se that renders the process of judgment-writing unfair.  A judge may copy extensively from the briefs in setting out the facts, the legal principles and the arguments, and still assess all the issues and arguments comprehensively and impartially.  No one could reasonably contend that the process has failed in such a case.
[36]                          To sum up, extensive copying and failure to attribute outside sources are in most situations practices to be discouraged.  But lack of originality and failure to attribute sources do not in themselves rebut the presumption of judicial impartiality and integrity.  This occurs only if the copying is of such a character that a reasonable person apprised of the circumstances would conclude that the judge did not put her mind to the evidence and the issues and did not render an impartial, independent decision…
[49]                          In summary, courts in Canada and elsewhere have held that copying in reasons for judgment is not, in itself, grounds for setting the judge’s decision aside.  However, if the incorporation of the material of others would lead a reasonable person apprised of all the relevant facts to conclude that the trial judge has not put his or her mind to the issues and made an independent decision based on the evidence and the law, the presumption of judicial integrity is rebutted and the decision may be set aside.
[50]                          This does not negate the fact that, as a general rule, it is good judicial practice for a judge to set out the contending positions of the parties on the facts and the law, and explain in his or her own words her conclusions on the facts and the law.  The process of casting reasons for judgment in the judge’s own words helps to ensure that the judge has independently considered the issues and come to grips with them.  As the cases illustrate, the importance of this may vary with the nature of the case.  In some cases, the issues are so clear that adoption of one party’s submissions or draft order may be uncontroversial.  By contrast, in complex cases involving disputed facts and legal principles, the best practice is to discuss the issues, the evidence and the judge’s conclusions in the judge’s own words.  The point remains, however, that a judge’s failure to adhere to best practices does not, without more, permit the judge’s decision to be overturned on appeal.  
 

Possibility of Jail Not a "Negative Contingency" When Assessing Diminished Earning Capacity

Written by admin on . Posted in ICBC Wage Loss, Uncategorized. 56 Comments on Possibility of Jail Not a "Negative Contingency" When Assessing Diminished Earning Capacity


This week the BC Court of Appeal provided reasons explaining that it is not appropriate for a judge or jury to reduce damages for diminished earning capacity when there is a possibility the Plaintiff will be incarcerated in the future.
In this week’s case (Albert v. Politano) the Plaintiff was seeking substantial damages for a collision caused injury which impeded him in his usual occupation.  Prior to his injury trial the Plaintiff was charged with a criminal offence which he was disputing.  The Defendant argued that the jury could consider the possibility of conviction and incarceration in assessing injury caused diminished earning capacity.  In finding this inappropriate the BC Court of Appeal provided the following comments:
 42]        I do not agree the judge erred as alleged. I reach this conclusion for three reasons. First, the judge was not asked to give the instruction now advocated, notwithstanding the opportunity given to counsel to comment on the proposed instructions. Second, there was no evidence upon which a jury could assess the value of such a contingency. Third, and most important, I do not consider it would have been appropriate for the jury to reduce the future damage award for the negative contingency of a possible future jail sentence, in the circumstances before the Court. Mr. Albert stood in the courts, and in the community, as innocent until proven guilty. Even if proven guilty, there was no certainty that he would receive a jail sentence. In my view, it would have been entirely speculative for the jury to reduce the damage award to reflect the chance that he might be convicted on the outstanding charges. This is unlike the case relied upon by the appellants, British Columbia v. Zastowny, [2008] 1 S.C.R. 27, (2008) S.C.C. 4, wherein the Supreme Court of Canada, on appeal from this court, affirmed the appropriateness of a deduction in damages to take account of a period of incarceration that was established as a fact at the trial.

Two Jaywalking Injury Claims Dismissed by the BC Supreme Court

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized.

Adding to this site’s archived case summaries of collisions invovling jaywalking pedestrians, two separate cases involving such a collision recently were dismissed at trial by the BC Supreme Court.
In the first case (Talbot v. Kijanowska) the Plaintiff, who emerged from an alleyway, was attempting to cross a street without the right of way.  The Defendant motorist did not see him in time to take evasive action.  The Plaintiff’s claim was ultimately dismissed with Mr. Justice Greyell providing the following reasons:
[34]         It is acknowledged by Mr. Talbot that he was not crossing the street at a crosswalk, marked or unmarked, at the time he struck or was struck by Ms. Kijanowska’s vehicle. Even if he had been crossing a crosswalk, there is a common law duty on a person in Mr. Talbot’s position to take care of his own safety upon leaving the curb: Kovacova v. Ray, [1998] B.C.J. No. 3309, 48 M.V.R. (3d) 56 (S.C.) at para. 17….
38]         The headlights Mr. Talbot saw upon emerging from the alleyway and upon looking to his right must have come from Ms. Kijanowska’s approaching vehicle. There were no other vehicles on the roadway at the time. Mr. Talbot was unable to explain how or why he did not see Ms. Kijanowska’s vehicle as it approached him after having first observed it about one block away. Mr. Talbot was not able to refute the defence’s theory that he had walked or run into the side of Ms. Kijanowska’s vehicle.
[39]         The only conclusion that I can draw from these unfortunate circumstances is that Mr. Talbot was simply not paying attention or having regard to his own safety when he left the alleyway and walked onto Trutch. He may very well have been distracted by listening to music on his headphones, which were observed lying on the ground next to him.
Accordingly, on the facts as I find them I cannot attribute negligence to the defendant. I conclude the accident of March 27, 2010 was caused solely by the negligence of Mr. Talbot in failing to take care of his own safety by keeping a proper lookout as he left the alleyway and walked onto Trutch and into Ms. Kijanowska’s vehicle.
[40]         The plaintiff’s action is dismissed. In the ordinary course the defendant would be entitled to costs. If there are matters of which I am unaware counsel may speak to the issue.
In the second case, (Pinsent v. Brown) the Plaintiff pedestrian was injured when attempting to cross a street in Vancouver in dark and rainy conditions.  She was not crossing at an intersection or in a crosswalk and “emerged onto the roadway from between parked cars”.  In finding the Plaintiff solely at fault for the resulting collision Madam Justice Ross provided the following reasons:
[32]         The applicable statutory provisions are ss. 179, 180 and 181 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318,…
[34]         The mere fact that the driver did not see the pedestrian before striking him, is not in itself, sufficient to establish that the driver kept an inadequate lookout: Plett v. ICBC (1987), 12 B.C.L.R. (2d) 336 (C.A.). The driver is required to operate his vehicle so that he will be able to avoid striking a pedestrian who is crossing his path in a reasonable manner: Funk v. Carter, 2004 BCSC 866….
[52]         Ms. Brown testified that she was familiar with the area and not distracted. She did not see Ms. Pinsent until Ms. Pinsent stepped out from behind the parked car and stepped into her path. I find that Ms. Brown was exercising reasonable care and attention. I find further that Ms. Pinsent was not visible to Ms. Brown until it was too late to avoid the accident.
[53]         In all of the circumstances I have concluded that the plaintiff has not established that Ms. Brown was travelling at an excessive rate of speed or that she failed to exercise the care and attention of a reasonably prudent driver.
[54]         The accident occurred while Ms. Pinsent was jaywalking. Accordingly, Ms. Brown had the right of way. Ms. Pinsent has failed to establish that after Ms. Brown became aware, or by the exercise of reasonable care should have become aware, of Ms. Pinsent’s own disregard of the law, Ms. Brown had a sufficient opportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself.
[55]         I find that Ms. Brown was not negligent in the manner she operated her vehicle. Ms. Pinsent was the sole cause of this unfortunate accident. In the result the action is dismissed.

BC Court of Appeal Upholds Canadian National Boxing Champions $1,000,000 ICBC Hand Injury Case

Written by admin on . Posted in ICBC Hand Injury Cases, ICBC Wage Loss, Jury Trials, Uncategorized.


(Cross-Published at the Canadian MMA Law Blog)
Last year a Vancouver Jury awarded professional boxer  Jegbefumere ‘Bone’ Albert  just over $1,000,000 following a traumatic hand injury caused in a motor vehicle collision which negatively impacted his boxing career.  He was a professional cruiser weight at the time with a 4-0 professional record and a 251-3 amateur record.  The collision caused a chronic hand injury which flared with training/fighting.  The Jury accepted this impacted him in his chosen profession and awarded substantial damages for diminished earning capacity.
ICBC appealed arguing numerous errors at the trial level.  In unanimous reasons for judgement (Albert v. Politano) the BC Court of Appeal dismissed ICBC’s appeal and in doing so the Court provided the following comments addressing the lost opportunity of the plaintiff –
[50]        This brings us to the assessment of damages itself. The appellants say that each of the heads of damages assessed is wholly out of proportion to the evidence before the Court.
[51]        Damages are a question of fact and we may interfere with the quantum, absent an error of law or principle, only if there is a palpable and overriding error.
[52]        I deal with the loss of earning capacity first. I conclude, from the fact the jury awarded a significant sum, that the jury rejected the appellants’ submission that Mr. Albert would have withdrawn from a boxing career, soon after the accident, in any event. Clearly Mr. Albert had boxing ability. The jury must have considered that his boxing ability was diminished as the result of the injuries from the accident. It is true that Mr. Albert did not earn very much money from boxing prior to the accident. It is also true that there was not a great deal of evidence about the size of the purses available in professional boxing. Nonetheless there was some evidence. Witnesses from the world of boxing did testify to some extent as to the purses won in certain matches, particularly in Canada. There was evidence, therefore, before the jury from which they could conclude that Mr. Albert had the skills to fight for, and win, purses in the time between the accident and the trial, amounting to $60,000. The period of past loss is close to four years. The sum awarded is well within the range of the purses that were discussed in the evidence as available, in Canada, over that period of time. Given the positive evidence as to Mr. Albert’s abilities, one cannot say the award of $60,000 for past income loss is unsupported by the evidence, disproportionate, or wholly erroneous.
[53]        I have come to the same conclusion in respect to the award for future loss. That sum may be a small portion of what Mr. Albert otherwise would have earned, or it may be more than he would have earned. We do not know. There was, however, evidence of his considerable abilities and evidence of the purses available in the boxing world, even in Canada, that would support an award of $838,000. I would not interfere with the award for future loss of earnings.
I‘d like to thank Vancouver lawyer John Cameron for sharing this development with me for publication.
 

Appeal of Criminal Conviction Deemed Sufficient Reason to Adjourn Personal Injury Trial

Written by admin on . Posted in Uncategorized. 54 Comments on Appeal of Criminal Conviction Deemed Sufficient Reason to Adjourn Personal Injury Trial

Interesting reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, addressing an adjournment of a personal injury trial when collateral criminal proceedings were ongoing.
In last week’s case (Gillespie v. Pompeo) the Defendant police officer shot and injured the Plaintiff.  The police officer was charged and convicted of aggravated assault.  He appealed the conviction.  Before the appeal was disposed of the Plaintiff’s injury claim was scheduled for trial.  The Defendant applied to adjourn the trial until the criminal matter was disposed of.  In finding this appropriate Mr. Justice Baird provided the following reasons:
[11]         Section 71 of the Evidence Act, R.S.B.C. 1996, c.124, provides that a conviction that is not subject to appeal, or from which no appeal is taken, may be admitted as evidence on a civil trial as proof that the convicted person committed the offence…
[15]         Defendant’s counsel submitted that the presently scheduled civil trial in June will involve a second full trial on precisely the same evidence and issues as those already given a comprehensive airing on the criminal trial in Provincial Court. The same witnesses will be called on the issue of liability and the same defence of justification under section 25 of the Criminal Code will be advanced.
[16]         Defendant’s counsel has conceded, quite properly, that there can be no civil trial on the question of liability if the conviction stands and all appeals are abandoned or exhausted…
[19]         As things stand, the defendant has been criminally convicted of aggravated assault. There can be no assumption at this stage that a civil trial will yield a different or more accurate result. If the conviction is upheld it will be the end of the matter for the purposes of liability, and a civil trial conducted in the interval will have been a colossal waste of judicial resources and the time, money and effort of the parties and witnesses alike. Finally, dual proceedings on the same issues and facts give rise to the spectre of inconsistent verdicts, an eventuality to be avoided in the interests of maintaining the credibility of the judicial process.
[20]         For these reasons I conclude that an adjournment of the civil trial is in the best interests of justice.

Court Clarifies Recovery of Interest on Disbursements

Written by admin on . Posted in Uncategorized. 55 Comments on Court Clarifies Recovery of Interest on Disbursements

Update November 17, 2014 – in Reasons released today the BC Court of Appeal overruled the below decisions and found interest on disbursements cannot be recovered.
 
—————————–
Prosecuting an injury claim to trial often involves thousands if not tens of thousands of dollars in disbursement expenses.  If a litigant is victorious can they claim interest on these expenses?  Two competing judgement were heard together on appeal clarifying this issue (Chandi v. Atwell).  In short, Mr. Justice Savage held that interest on disbursements can be recoverable.  The Court provided the following reasons:
[28]         In Milne, the plaintiff was injured in an automobile accident. Following the injury, the plaintiff had three M.R.I. examinations over three years. An account was rendered to the solicitor for the M.R.I. examinations, which included interest on the unpaid balances. The account was paid.
[29]         The action was settled for an agreed sum, plus costs. The matter of costs was referred to the registrar, who ruled that the interest component of the M.R.I. account could not be recovered as part of a cost assessment. The appeal came to the Supreme Court as an appeal of the decision of a master sitting as a registrar of the court.
[30]         Mr. Justice Burnyeat considered various decisions of registrars and masters, which were in apparent conflict….
[32]         Mr. Justice Burnyeat held as follows:…
the law in British Columbia is that interest charged by a provider of services where the disbursement has been paid by counsel for a party is recoverable as is the disbursement. The interest charge flows from the necessity of the litigation. If the disbursement itself can be assessed as an appropriate disbursement, so also can the interest owing as a result of the failure or inability of a party to pay for the service provided. In order to obtain the M.R.I., it was necessary to pay not only the $975.00 cost but also the interest on any unpaid balances that were not paid immediately. The cost plus interest was the cost of obtaining the M.R.I. The claim for interest should have been allowed.
[70]         To the extent that Burnyeat J. preferred the reasoning in McCreight to the reasoning in the other cases, I note that of these cases, only Hudniuk was from a fellow judge. Hudniuk is obiter dicta in an oral ruling delivered to counsel while considering a jury charge. When confronted by conflicting decisions from masters and registrars and obiter dicta from a fellow judge in an oral ruling that was at best nisi prius, Burnyeat J. was bound to decide the correct interpretation according to his best lights, which he did: R. v. Pereira, 2007 BCSC 472 at para. 48, citing Young v. Bristol Aeroplane Co., [1944] 2 All E.R. 293 (C.A.).
[71]          In the result, judicial comity persuades me that I should follow the decision in Milne. There is nothing in the interests of justice that persuades me to exercise my discretion to depart from this practice.

Court of Appeal Discusses Standard of Care In Road Construction Liability Cases

Written by admin on . Posted in ICBC Liability (fault) Cases, Occupier's liability claims, Uncategorized. 48 Comments on Court of Appeal Discusses Standard of Care In Road Construction Liability Cases


Reasons for judgement were released this week by the BC Court of Appeal upholding a trial verdict finding the City of Abbotsford and a private contractor 80% responsible for a single vehicle collision in a construction zone.
In this week’s case (Van Tent v. Abborsford) the plaintiff was riding his motorcycle through a construction zone when he drifted over the fogline to his right.  There was a two inch drop off in the pavement level due to on-going construction.  The Plaintiff lost control and was injured.
The Plaintiff was found partially at fault for not driving safely, however, the Defendants bore 80% of the blame for “failing to adequately mark the uneven pavement“.
The trial judge found that the Ministry of Transportation’s Traffic Control Manual for Work on Roadways was informative of the standard of care.   The Defendants “failed to adhere to several of those standards“.  In finding that this was an appropriate standard of care to hold the Defendants to the BC Court of Appeal provided the following reasons:
[11]         Sections 138 and 139 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, require traffic control devices be erected on a highway when there is construction. Those sections read:
Work in progress
138  On a highway where new construction, reconstruction, widening, repair, marking or other work is being carried out, traffic control devices must be erected indicating that persons or equipment are working on the highway.
Erection of speed sign
139  On a highway where new construction, reconstruction, widening, repair, marking or other work is being carried out, traffic control devices must be erected to limit the rate of speed of vehicles or to restrict the manner in which the vehicles are to proceed on the highway.
[12]         The Ministry of Transportation’s Traffic Control Manual for Work on Roadways [the “Manual”] contains prescribed standards for designing and implementing traffic control plans for construction zones on British Columbia highways.  Section 1.1 states that the examples provided within the Manual are “generally the minimum required”…
 
[45]         As already noted, the trial judge held at para. 93 of her reasons that s. 138 of the Motor Vehicle Act and the Manual informed the standard of care expected of a reasonably prudent contractor in the circumstances.  (Although not specifically mentioned, s. 139 is of relevance as well.)  She found in fact that the appellant contractor fell below this standard in a number of ways, beginning at para. 71:
[71]      In this case, the standard of care is greatly informed, although not dictated, by the collection of uniform traffic control standards detailed in the Manual.  By virtue of performing construction work on a provincial highway, the defendants were required, at a minimum, to abide by the principles and guidelines it contained.  The applicable standards endorsed in the Manual accord with common sense and the conduct expected of a prudent contractor in the circumstances in relation to the task of ensuring the safety of the users of the road and work crews during times of construction and maintenance.
[72]      In my view, the defendants failed to adhere to several of those minimal standards.  With respect to many of them, Mr. Stewart variously seemed not to know of them or appreciate their application or the complexities of the planning work that was required of him in creating and implementing an appropriate traffic control plan.
[46]         The errors identified by the appellants are findings of fact made by the trial judge.  The appellants have not identified any palpable or overriding errors that would warrant intervention by this Court.  Those findings of fact are amply supported by the evidence.  I conclude that the trial judge did not err in describing the standard of care, or in concluding that it was breached by the appellants.

Court Ordered Interest Allowed on Unpaid Special Damages

Written by admin on . Posted in Uncategorized. 10 Comments on Court Ordered Interest Allowed on Unpaid Special Damages

It is well established that a litigant in a BC injury claim is entitled to court ordered interest on successful special damages claims.  What about special damages that are owing but have have not yet been paid?  Is interest recoverable on these?  Reasons for judgement were released last week addressing this topic and the answer is yes.
In last week’s case (Thibeault v. MacGregor) Mr. Justice Weatherill provided the following analysis:
[134]     I agree with Mr. Walton that the plaintiff is entitled to interest pursuant to the Court Order Interest Act (COIA) on the special damages I have awarded, even though the charges for physiotherapy have not yet been paid.  The relevant section of the COIA provides:
(1) Subject to section 2, a court must add to a pecuniary judgment an amount of interest calculated on the amount ordered to be paid at a rate the court considers appropriate in the circumstances from the date on which the cause of action arose to the date of the order.
(2) Despite subsection (1), if the order consists in whole or part of special damages, the interest on those damages must be calculated from the end of each 6 month period in which the special damages were incurred to the date of the order on the total of the special damages incurred
(a) in the 6 month period immediately following the date on which the cause of action arose, and
(b) in any subsequent 6 month period.
[emphasis added]
[135]     Black’s Law Dictionary, 9th ed. defines “incur” as “[to] suffer or bring on oneself (a liability or expense)”.  The plaintiff became liable for the cost of her physiotherapy payments when she either attended or missed her appointments.

Concussion Lawsuits – Are the Floodgates About to Open in the MMA World?

Written by admin on . Posted in Uncategorized. 46 Comments on Concussion Lawsuits – Are the Floodgates About to Open in the MMA World?

The below post is cross-posted from my Canadian MMA Law Blog; 
__________________________________________________________________________

This weekend another sports related concussion lawsuit has hit the media.  This time  its the NHL making headlines.
The family of late enforcer, Derek Boogaard, hasfiled a wrongful death claim against the NHLarguing the League is responsible for brain damage the feared fighter sustained in his years playing professional hockey.  He had at least 66 on ice fights in his professional career.
Such lawsuits are becoming more commonplace in the world of professional sports.  These lawsuits are often grounded in the theory that sports organizations allow athletes to compete while undermining or concealing the risk of injury.  So what does this have to do with MMA?  It is likely a foreshadowing of things to come.  More importantly, it is a good opportunity to get ahead of a potential problem for the betterment of the sport.
The NHL and NFL are mature leagues with a lengthy history.  There are generations of retired athletes with long term data to draw from comparing these athletes to retired members of the general population.  One pattern that is becoming clearer is that of Chronic Traumatic Encephalopathy and its relationship to long term involvement in contact sports.  Athletes who experience repetitive brain trauma over their careers have a greater chance of developing this degenerative disease.   The relationship of brain dysfunction and exposure to repeated sub-concussive trauma is also becoming better understood. As the long term health of more retired athletes is studied, a greater understanding of this pattern occurs.
While there is clearly homework to be done in terms of this link and MMA, the one thing the UFC and other MMA organizations can learn from these lawsuits is to get ahead of the curve.  There is nothing to gain by taking an ostrich approach to brain trauma.  Instead MMA leagues should take meaningful steps to acknowledge these risks head on and encourage their athletes to learn about the full known risks that come with participation.  As retired Canadian MMA fighter Nick Denis demonstrated, not all fighters agree to carry on with a career in MMA after learning of the risks.  Failing to facilitate athlete’s appreciation of CTE and other long term consequences not only undermines informed participation, it can also lead to the legal troubles that are now plaguing the NHL and NFL.
Dana White, president of the UFC, has, to his credit, done much for the growth of MMA and aiding in the creation of its regulatory framework.  However, in the process the plain speaking promoter has made some foolish representations along the lines of MMA being the ‘safest sport in the world’.  This hyperbole can be forgiven by the average fan who understands that Dana is speaking from a desire to assist the growth of the sport and refuting political resistance such as the well worn ‘human cockfighting’ soundbite.  Such reckless statements, however, can have an unintended impact in the legal context if a fighter who is diagnosed with CTE turns to legal action.
Organizations will be best served by not undermining these risks.  Concussive injury should not be downplayed as it was by the flippant attitude shown to Matt Mitrione in face of his voiced concussive concerns in season 10 of TUF.  While this may have made for better ratings, encouraging an attitude which undermines concussive injuries is not in the long term interests of athletes nor MMA organizations.  If this attitude is pervasive in the organization there could be unwanted legal repercussions down the road.  Stake holders should not wait for the legal floodgates to open before addressing this issue.

Facebook Strikes Again

Written by admin on . Posted in Uncategorized. 111 Comments on Facebook Strikes Again

In yet another example of a personal injury claim being undermined by postings on social media, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating a Facebook posting undoing a claimed damage.
In this week’s case (Neyman v. Wouterse) the Plaintiff was injured in a 2007 collision.  She sued for damages and her claim was partially successful.  An aspect of her claim that was not accepted dealt with driving anxiety.
The Plaintiff claimed that one of the consequences stemming from the collision was “a driving phobia“.  The Court did not accept this finding that the Plaintiff was “an unreliable historian“.  In coming to this conclusion the Court referenced the Plaintiff’s own Facebook posting and provided the following reasons:
[126]     Ms. Neyman’s evidence that she continues to suffer from a driving phobia, albeit one that has improved, is also questionable. Before a Facebook posting that she made on January 9, 2009 was put to her, she gave the impression in her evidence that she generally suffered from anxiety after the Accident, but that it improved with time. In her Facebook posting, she wrote about driving her mother’s manual transmission BMW late at night and at high speed. The entry reads:
Angela Neyman is finally remembering how awesome it is to drive 120 clicks on a clear road in her car (Ang ?’s Speedy G).
[127]     I found that Ms. Neyman’s responses to questions during cross-examination about that entry reflected poorly on her credibility and indicated a mindset that continues to be heavily focused on the Accident as the cause of every problem or difficulty she has faced since. Once the Facebook entry was put to her, Ms. Neyman denied suffering any phobia to driving that involved driving very fast, late at night, and in the dark with a sore knee. I also found Ms. Neyman’s attitude towards defence counsel during the exchange to have been inappropriately condescending. I also found Ms. Neyman’s evidence to be at odds with her previous testimony that in 2011, two years after the Facebook posting, she was forced to purchase a vehicle with an automatic transmission because she found driving a car with a clutch aggravated her hip. That evidence is also inconsistent with her similar advice to Dr. van Rijn in 2010 that she found it difficult to drive a standard vehicle, “as using the clutch aggravates her back and hip pain.”
[128]     Many of the answers she gave in cross-examination about a number of her Facebook postings reflected a mindset to minimize physical and travel-related problems not related to the Accident, and to discount as overstated those Facebook postings that suggested she was, following the Accident, pursuing an over-burdensome schedule by working mostly full-time hours while attending school on a full-time basis.
[129]     I am, respectfully, unable to accept the submission made by her counsel that a number of Ms. Neyman’s postings on her Facebook that might reflect poorly on her credibility should be characterized as youthful boasting to her peers. Her comments on Facebook were made of her own volition. In my opinion, having observed Ms. Neyman in the witness box over the course of several days, I am satisfied that her Facebook comments accurately reflect her mindset when each posting was made.
[130]     In all, I found Ms. Neyman to be an unreliable historian in many respects. She is unduly focused on the Accident as the cause of all of her pain and difficulties with school and work. Accordingly, I find it difficult to place meaningful weight on much of her evidence concerning the nature and extent of her pain and suffering caused by the Accident and what happened to her on impact.