A few years ago I discussed litigants spying on themselves through the use of social media. Reasons for judgement were released this week by the BC Court of Appeal demonstrating this reality in action.
In this week’s case (Bialkowski v. Banfield) the Plaintiff was involved in a 2007 motor vehicle collision. He claimed significant damages and proceeded to trial. Although there was medical evidence in support of his claim a jury outright rejected it and awarded $0 in damages.
The Plaintiff appealed arguing that such a verdict was “not open to the jury on the evidence“. The BC Court of Appeal disagreed finding that credibility was a live issue and surveillance and even You-Tube evidence was introduced which could have explained the Jury’s rejection of the medical evidence. In dismissing the appeal the Court provided the following reasons:
 A major thrust of the respondent’s case was an attack on the credibility of the appellant. Evidence was adduced of long-term, pre-existing medical issues and personal difficulties the appellant had been obliged to face over the years. The surveillance video showed him undertaking physical activities that were not compatible with his claimed injuries. It was supplemented by YouTube videos to the same effect.
 The appellant presented evidence that he has medical difficulties, both physical and mental. The difficulty is that the appellant was obliged to satisfy the jury that the injuries were caused by the accident. There was evidence that these difficulties were more severe manifestations of pre-existing problems. Although he presented a potentially persuasive case that he was injured as a result of the accident, the jury did not accept it. The respondent mounted an apparently successful, serious attack on the appellant’s case aimed extensively at his credibility.
 I have reviewed the litany of medical evidence as canvassed by the parties. A trier of fact could have concluded that the accident caused compensable injury to the appellant, but it certainly was open to the jury to conclude otherwise. In my view, there was evidence on which the jury rationally could reach its verdict. I do not think there is a basis in this case for this Court to interfere with the weight given by the jury to the evidence overall.
 I would dismiss this appeal.
Tag: Bialkowski v. Banfield
(Image courtesy of Wikipedia)
Reasons for judgement were published this week by the BC Supreme Court, Victoria Registry, addressing the admissibility of QEEG Evidence in a brain injury claim. In short the Court held that while such evidence may be admissible in appropriate cases, the evidence presented in the case was insufficient to meet the threshold test of reliability to admit “novel” evidence.
In this week’s case (Bialkowski v. Banfield) the Plaintiff was injured in a motor vehicle collision. He allegedly suffered a traumatic brain injury. In support of his claim he tired to introduce QEEG evidence tendered through a neuropsychologist. Mr. Justice Bracken declined to let the evidence in finding that the neuropsychologist was not properly qualified to introduce the QEEG evidence and further the evidence was not proven to be reliable. In excluding the evidence Mr. Justice Bracken provided the following summary of his findings:
 Electroencephalography (“EEG”) is a means of recording the electrical activity of the brain. Typically, electrical signals are received through 19 electrodes placed on certain areas of the scalp by attaching the electrodes to a cap that fits snugly over the patient’s head. The electrical activity is then recorded either on paper, or digitally on a computer. The clinician can then visually examine the recorded data to analyze the patterns of activity.
 QEEG is a relatively new neuroimaging technique. It uses computer assisted analysis of EEG tests. The raw EEG data is digitized and analyzed by means of a mathematical algorithm. It is said that the computer analysis is capable of extracting more information from the raw EEG data and enables the clinician to observe more subtle anomalies than can be seen with the eye on standard visual analysis. Using another program the digitized data is then compared to a normative database to determine if the data are consistent with what is normal for a comparable group of individuals…
 While there may be cases where QEEG evidence will be accepted as part of expert opinion in Canadian Courts it should only be through a neurologist who is trained and qualified in EEG testing and analysis. In my view, only a trained electroencephalographer who has the skill, knowledge and training to recognize the potential for error is qualified to give opinion evidence of QEEG analysis.
 On the evidence presented in this case, I find the QEEG evidence to be novel science and not sufficiently reliable for admission into evidence on the principles established in J.L.J. andMohan. I conclude it will not assist the trier of fact. As science progresses this may change and the evidence may meet the test of reliability so as to be admissible at some point in the future. As was noted in Seifert, the fact that expert evidence conflicts does not, by itself, make it inadmissible. Coburn, et al, recognize this in the conclusion of their report at p. 23, where it is stated:
Used cautiously and with appropriate recognition of its limitations, QEEG offers the clinician an accurate laboratory test to aid in the detection and differential diagnosis of several common neuropsychiatric disorders. … Additional uses of QEEG showing promise but not yet sufficiently developed for routine clinical application include the prediction of medication efficacy and the prediction of the clinical cause of a disorder.
There is nothing in that conclusion to suggest it will become clinically useful in diagnosing traumatic brain injury in the near future; however, it remains open for such evidence to be offered through an appropriate expert if and when it satisfies the evidentiary requirements of Canadian Courts.
 The evidence of QEEG analysis given by Dr. Malcolm is rejected as not being offered by a qualified expert. QEEG does not meet the requisite reliability threshold and is still novel science.