More on Injury Claims, Credibility and Cross-Examination
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:
 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.
 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.
 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”.
 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.
 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.
 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.
 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).
 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.
 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.
 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
I just want to mention I am newbie to weblog and honestly savored you’re page. Almost certainly I’m going to bookmark your blog . You surely come with superb articles and reviews. Thank you for revealing your webpage.
I really enjoy reading through on this website , it has excellent articles . “One doesn’t discover new lands without consenting to lose sight of the shore for a very long time.” by Andre Gide.
I’d need to test with you here. Which isn’t something I normally do! I get pleasure from studying a post that may make individuals think. Additionally, thanks for permitting me to comment!
Hello, i feel that i noticed you visited my web site so i came to “return the prefer”.I am trying to find issues to enhance my web site!I guess its adequate to use some of your ideas!!
beast TV trial
I gotta favorite this web site it seems very helpful very helpful
I¡¦ll immediately take hold of your rss feed as I can’t find your e-mail subscription hyperlink or e-newsletter service. Do you’ve any? Please allow me understand in order that I may just subscribe. Thanks.
Today, I went to the beachfront with my kids. I found a sea shell and gave it to my 4 year old daughter and said “You can hear the ocean if you put this to your ear.” She placed the shell to her ear and screamed. There was a hermit crab inside and it pinched her ear. She never wants to go back! LoL I know this is completely off topic but I had to tell someone!
location de porsche
Fantastic beat ! I would like to apprentice even as you amend your website, how can i subscribe for a blog website? The account aided me a applicable deal. I have been a little bit familiar of this your broadcast offered bright clear concept
agen poker online
What i don’t understood is in reality how you’re no longer really a lot more smartly-preferred than you may be now. You are so intelligent. You already know therefore considerably in the case of this matter, produced me in my opinion believe it from a lot of varied angles. Its like women and men are not fascinated unless it is something to do with Girl gaga! Your personal stuffs outstanding. At all times care for it up!
I do not even know how I ended up here, but I thought this post was good. I do not know who you are but definitely you are going to a famous blogger if you are not already 😉 Cheers!
situs poker online
I have been exploring for a little for any high-quality articles or blog posts on this kind of area . Exploring in Yahoo I at last stumbled upon this website. Reading this info So i’m happy to convey that I have a very good uncanny feeling I discovered just what I needed. I most certainly will make sure to don’t forget this website and give it a glance on a constant basis.
This design is incredible! You definitely know how to keep a reader entertained. Between your wit and your videos, I was almost moved to start my own blog (well, almost…HaHa!) Wonderful job. I really enjoyed what you had to say, and more than that, how you presented it. Too cool!
Outstanding post however , I was wanting to know if you could write a litte more on this topic? I’d be very thankful if you could elaborate a little bit more. Cheers!
I like the helpful info you provide in your articles. I’ll bookmark your blog and check again here frequently. I’m quite sure I will learn lots of new stuff right here! Good luck for the next!
затворы sung do
Good day I am so thrilled I found your website, I really found you by mistake, while I was looking on Google for something else, Anyways I am here now and would just like to say kudos for a tremendous post and a all round interesting blog (I also love the theme/design), I don’t have time to read through it all at the moment but I have book-marked it and also included your RSS feeds, so when I have time I will be back to read more, Please do keep up the awesome work.
Very interesting info !Perfect just what I was searching for! “Outside of a dog, a book is man’s best friend. Inside of a dog it’s too dark to read.” by Groucho Marx.
Digital Marketing Manager Wien
Digital Marketing Wien
I’m really impressed with your writing skills as well as with the layout on your blog. Is this a paid theme or did you customize it yourself? Either way keep up the excellent quality writing, it’s rare to see a great blog like this one nowadays..
hi!,I love your writing very so much! percentage we communicate more approximately your article on AOL? I need an expert in this house to solve my problem. May be that’s you! Taking a look ahead to see you.
Hey there! I know this is kind of off topic but I was wondering which blog platform are you using for this website? I’m getting fed up of WordPress because I’ve had issues with hackers and I’m looking at alternatives for another platform. I would be great if you could point me in the direction of a good platform.
lifeguard classes near me
My wife and i felt quite cheerful that Peter managed to do his investigation with the ideas he made in your weblog. It is now and again perplexing to just happen to be giving freely information and facts which often most people might have been making money from. And we also see we have the writer to appreciate because of that. The entire explanations you made, the easy blog navigation, the relationships you assist to foster – it’s got most astounding, and it’s really making our son in addition to the family know that that issue is enjoyable, and that’s quite serious. Many thanks for all!
Thank you for this article. I will also like to convey that it can be hard if you are in school and merely starting out to initiate a long history of credit. There are many students who are merely trying to live and have a good or favourable credit history can occasionally be a difficult element to have.
Wow! This could be one particular of the most helpful blogs We’ve ever arrive across on this subject. Basically Fantastic. I am also an expert in this topic so I can understand your hard work.
These days of austerity and relative anxiousness about having debt, lots of people balk up against the idea of employing a credit card in order to make acquisition of merchandise or maybe pay for a trip, preferring, instead only to rely on the particular tried along with trusted procedure for making settlement – cash. However, if you possess the cash there to make the purchase entirely, then, paradoxically, this is the best time for them to use the credit cards for several motives.
It’s really a cool and useful piece of info. I’m happy that you shared this useful info with us. Please keep us up to date like this. Thank you for sharing.
where to watch game of thrones
Just wish to say your article is as amazing. The clarity on your publish is simply nice and i could think you are knowledgeable on this subject. Well with your permission let me to snatch your RSS feed to keep up to date with approaching post. Thanks one million and please keep up the gratifying work.
I have read some good stuff here. Definitely worth bookmarking for revisiting. I surprise how much effort you put to create such a wonderful informative web site.
Aw, this was a very nice post. In idea I want to put in writing like this moreover – taking time and precise effort to make an excellent article… but what can I say… I procrastinate alot and under no circumstances appear to get something done.
Oferty Pracy Do Opieki W Niemczech
Hello, Neat post. There’s an issue along with your website in web explorer, may test this… IE still is the market leader and a good element of other people will omit your fantastic writing because of this problem.
Regards for helping out, wonderful info .
I do accept as true with all the concepts you’ve presented in your post. They are really convincing and will definitely work. Nonetheless, the posts are too quick for novices. May you please lengthen them a little from next time? Thanks for the post.
taydeville ft lil jay from crime
Its like you read my mind! You seem to know a lot about this, like you wrote the book in it or something. I think that you can do with some pics to drive the message home a little bit, but other than that, this is fantastic blog. A great read. I will definitely be back.
Hello there, I found your website by means of Google even as searching for a similar subject, your web site got here up, it looks good. I’ve bookmarked it in my google bookmarks.
I definitely wanted to compose a simple remark to express gratitude to you for all of the splendid facts you are showing on this site. My time consuming internet lookup has now been rewarded with awesome facts to exchange with my family and friends. I ‘d claim that many of us website visitors actually are really fortunate to be in a magnificent website with many marvellous people with very beneficial tactics. I feel rather privileged to have come across your entire web page and look forward to tons of more entertaining minutes reading here. Thanks a lot once again for a lot of things.
custom alnico magnets
I feel that is one of the such a lot important info for me. And i’m satisfied studying your article. However should statement on some general things, The web site taste is ideal, the articles is truly great : D. Good job, cheers
Hi there, I found your web site by way of Google while looking for a similar subject, your site came up, it seems to be good. I have bookmarked it in my google bookmarks.
I am curious to find out what blog system you’re working with? I’m experiencing some minor security issues with my latest site and I’d like to find something more safeguarded. Do you have any solutions?
Well I definitely liked reading it. This article provided by you is very effective for correct planning.
Pozycjonowanie Stron Gorzow
I genuinely enjoy reading on this web site, it holds great blog posts. “Don’t put too fine a point to your wit for fear it should get blunted.” by Miguel de Cervantes.
Aw, this was a really nice post. In thought I wish to put in writing like this additionally – taking time and precise effort to make an excellent article… however what can I say… I procrastinate alot and by no means appear to get something done.
pembesar alat vital alami
I truly appreciate this post. I’ve been looking everywhere for this! Thank goodness I found it on Bing. You’ve made my day! Thanks again
I am constantly searching online for posts that can aid me. Thanks!
Comments are closed.