More on Injury Claims and Plaintiff Credibility

Further to my previous articles on this topic, little can do more damage to a lawsuit than a Court finding a Plaintiff lacks credibility.   When advancing an injury claim it’s important to know the types of factors Courts review in gauging whether a witness should be believed.  Reasons for judgement were recently published by the BC Supreme Court, Nanaimo Registry, discussing some of these.
In today’s case (S.T. v. S.K.) the Plaintiff was involved in a severe motor vehicle collision in 2007.  The driver of the offending vehicle admitted fault.  The Plaintiff sued for compensation for her personal injuries which included trauma to her left shoulder and right ankle.  The Plaintiff was ultimately awarded compensation for her injuries.  Prior to assessing damages, however, the Court highlighted some concerns with the Plaintiff’s credibility.  Madam Justice Smith provided the following criticism of the Plaintiff’s evidence:

[6]           I will begin with some observations about the credibility of the plaintiff.  I have concluded that, unfortunately, I cannot rely with entire confidence on her testimony.  The reasons for this conclusion are as follows.

[7]           First, some of her claims are exaggerated.  For example, at the examination for discovery, at Question 319, the plaintiff was asked:

Q         All right, so explain to me about the depression.  How is it that you relate that to the accident?

A          To give an example, if I said before the accident if I had – I was healthy, I was happy, I had good choice of boyfriends really to the point that they were motivated, outgoing, took care of me, respectful.  After the accident I couldn’t do sports, I couldn’t do anything that I did all my life with all my best friends that I grew up with for twelve years.  I couldn’t do to the best of my ability of sports that I used to do, and acting, and stuff like that.  And because of that it brought me down, it brought me extremely down to the point of where I – I was just so lonely and alone that I was pretty much willing to have any kind of boyfriend that would take me, literally, just because I was – I felt like I had nothing left by the time, you know.

[8]           The answer at discovery was an exaggeration, I must conclude, in light of the  plaintiff’s admission at trial, under cross-examination, that after the accident she led a very active social life, had a lead role in the school musical, and participated (though in a reduced way) in sports, including volleyball and soccer.

[9]           Second, where one might expect witnesses to be called to corroborate the plaintiff’s evidence regarding her symptoms, the plaintiff called only one witness in that respect, her mother.  I do not suggest that L.B. is not a credible witness, but she does have a very close relationship with her daughter and an obvious motive to view the evidence in a way that would be favourable to her daughter.  Also, L.B.’s ability to corroborate the plaintiff’s evidence was limited by the fact that the plaintiff has not lived at home for extended periods of time since the accident, and is currently not living at home.  No friends of the plaintiff were called, nor any fellow employees or supervisors, to relate their observations of the plaintiff experiencing the kinds of difficulties she described in her testimony.

[10]        Third, in her application for admission to the licensed practical nurse program at Vancouver Island University, the plaintiff wrote:  “I am also in very good health.  I know that working as a care aide is at times heavy work.”

[11]        Under cross-examination, she was asked whether she was in very good health and answered, “No.”  Asked whether she was misrepresenting her health in the application letter, she was unable to explain this discrepancy, as seen in the following extract from her evidence at trial.  I quote from page 73 of the transcript of the May 21 evidence, beginning at Line 29:

Q         Well, S.T. ??

A          At the time I’m sure I would not have been thinking about healthwise related to my pain in my shoulder or as of that time, pain in my ankle.  I would have probably been referring to my mental health and not thinking about my physical health.  I was ??

Q         Well, when you comment that you know that working as a care aide is at times heavy work, you’re specifically relating that to the physical requirements, certainly not heavy mental work.

A          Well, not heavy meaning literal heavy.  I mean ?? I meant hard work.  That doesn’t ?? that doesn’t include physical work.  Mental work.  For example, as a care aide, it’s very heavy work with dealing with seniors, seniors passing away.  Having that emotional part of it is very heavy too.  So —

Q         S.T., are you suggesting that when you wrote: “I know that working as a care aide is at times heavy work”, you were referring to the heavy emotional requirements of the job?

A          Not all but that is a big factor.  Hard work.  I would have rephrased it but that’s the way I wrote it.

[12]        That answer is, to put it charitably, disingenuous.

[13]        Fourth, the plaintiff was cross-examined at trial about a statement she made to the claims adjuster, David Beatty, on May 29, 2009, when she was in his office to discuss a possible settlement.  She agreed that she “may have said” that she had recovered and was able to do virtually all that she could do before the accident.  At trial, she said at one point that it was “not true”, and at another point that it was “true at the time”.

[14]        On her examination for discovery at questions 228 to 229, however, she said:

Q         So, will [the left shoulder] cause you some difficulty once a month, or –

A          I can’t estimate, it’s just kind of a random kind of act.

Q         Okay, and have you had any other problems as a result of the accident that weren’t specified in the Statement of Claim?  Any other injuries that haven’t been covered?

A          No.

[15]        At trial, she tried to suggest in her testimony that she had given that answer on discovery because at that exact time her shoulder was not troubling her.  Asked at trial whether she understood that the question was not about the exact time, but about that period of time, she said she did not know if she understood that, adding, “My shoulder hurts me when it is used:  If I sleep on it, I’m in pain, or if I reach with it I’m in pain.  I can’t put dates and times on it, it’s whenever I aggravate it.”

[16]        Having noted those reasons for viewing the plaintiff’s evidence with some caution, I will briefly review her testimony and the testimony of other witnesses relating to her injuries.

bc injury law, credibility, Madam Justice Smith, S.T. v. S.K.

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Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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