Last year I criticized the often recited judicial passage stating that ““…the Court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery…” and pointing out that these comments should no longer be used given Supreme Court of Canada’s reasons in FH v. McDougall.
Reasons for judgement were released this week by the BC Supreme Court (Prince v. Quinn) addressing a Court’s role when dealing with subjective injuries. Mr. Justice Williams provided the following comments which, in my view, would do well to substitute the above passage in the context of a chronic soft tissue injury case:  With respect, as regards this latter point, it seems to me that this is an approach that must be considered with care. Taken to its ultimate conclusion, it would, in many cases, quite unfairly put a plaintiff in a position where proving a claim would be exceedingly difficult and verging on impossible.  In my view, the point to be observed is this: where a plaintiff’s claim is founded quite substantially on self-reported evidence, it is necessary for the trier of fact to scrutinize the plaintiff’s evidence carefully and evaluate it in the light of other evidence, such as the circumstances of the collision, other relevant information concerning the plaintiff’s activities and statements made by the plaintiff on other occasions. However, where the evidence of physical injury is substantially based on subjective evidence – the testimony of the plaintiff – that should not constitute an effective barrier to proof of a claim.  In the final analysis, it is the court’s duty to examine the evidence carefully and critically. That is what I have done in this case.
From time to time BC Courts appear to scrutinize soft tissue injury claims more carefully than claims with objective injuries. When doing so a very familiar quote from Mr. Justice McEachern is cited where he said “I am not stating any new principle when I say that the Court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery…”
This quote comes from the 1981 case Butler v. Blaylock and is often advanced by defence counsel in an effort to have a Court dismiss soft tissue injury claims. This quote has been repeated many times in recent judgements and recently the BC Court of Appeal referenced this authority in Mariano v. Campbell.
However, what was not noted by the Court and should be next time a defence lawyer brings this quote to the Courts attention is that Mr. Justice McEachern’s decision is Blaylock was overturned by the BC Court of Appeal in 1983 where the Court held as follows:
12 With the greatest respect, I am of the opinion that there is no evidence upon which one could reasonably conclude that the appellant did not continue to suffer pain as of the date of the trial. After careful consideration of the expert testimony and the evidence of the appellant and his wife, I have reached the conclusion that the only finding open to the learned trial judge was that as of the date of trial the appellant continued to suffer moderate pain and in the words of Dr. Lehmann, his symptoms “will gradually subside with further time. Having been present for approximately two and a half years, it is doubtful that they will disappear completely.” (underlining mine).
13 There are three basic reasons which, in my view, support the conclusion that the plaintiff continued to suffer pain as of the date of trial. Firstly, the plaintiff testified that he continued to suffer pain. His wife corroborated this evidence. The learned trial judge accepted this evidence but held that there was no objective evidence of continuing injury. It is not the law that if a plaintiff cannot show objective evidence of continuing injury that he cannot recover. If the pain suffered by the plaintiff is real and continuing and resulted from the injuries suffered in the accident, the Plaintiff is entitled to recover damages. There is no suggestion in this case that the pain suffered by the plaintiff did not result from the accident. I would add that a plaintiff is entitled to be compensated for pain, even though the pain results in part from the plaintiff’s emotional or psychological makeup and does not result directly from objective symptoms. 14 Secondly, all of the medical reports support the view that the plaintiff continued to suffer pain and that it was not likely that his symptoms would disappear completely.
15 Thirdly, and of great importance, is the report of Dr. Lehmann, which was not before the learned trial judge for his consideration. In that report, Dr. Lehmann stated that there were degenerative changes in the cervical spine which pre-existed the accident. He said “they were probably asymptomatic before the accident but I think are probably contributing to his prolonged discomfort.” (underlining mine). In my view, as this evidence is uncontradicted, these objective findings cannot be disregarded and should be given great weight.
In addition to the above, a subsequent case from the Supreme Court of Canada made it clear that all civil cases, regardless of the allegations or the nature of a lawsuit, need to be judged with the same civil standard. In F.H. v. McDougall the Canadian High Court stated as follows: I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities. Of course, context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences. However, these considerations do not change the standard of proof… To suggest that depending upon the seriousness, the evidence in the civil case must be scrutinized with greater care implies that in less serious cases the evidence need not be scrutinized with such care. I think it is inappropriate to say that there are legally recognized different levels of scrutiny of the evidence depending upon the seriousness of the case. There is only one legal rule and that is that in all cases, evidence must be scrutinized with care by the trial judge.
I hope this ‘history lesson’ helps anyone confronted with an attack on Plaintiff credibility during a soft tissue injury trial.
When you sue someone in British Columbia for causing injuries (either negligently or intentionally) you need to prove your case. If you fail to do so your case can be dismissed and you may end up paying the other party’s Court costs.
What is the test that needs to be met when proving your injuries? Unlike criminal trials which require proof of a crime ‘beyond a reasonable doubt‘, civil lawsuits have a much lower burden of proof. A Plaintiff in an injury lawsuit need only prove their claim on a ‘balance of probabilities‘ which means more likely than not. Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, discussing the civil burden of proof in an ICBC claim.
In today’s case (Costello v. Rafique) the Plaintiff was involved in a ‘relatively minor rear-end collision‘ in 2006. He sued for damages. The Plaintiff claimed the accident caused a back injury which continued to cause problems up until the time of trial. The Defendant disagreed arguing the car crash was not the cause of the Plaintiff’s ongoing pain problems rather these were attributable to a previous back condition (the Plaintiff in fact underwent a decompressive laminectomy shortly before the collision).
Mr. Justice Melnick found that while the Plaintiff did indeed continue to suffer from back pain, and that the ongoing symptoms “may well be…the result of soft tissue injuries resulting from the accident” possibility is not enough to prove a case on the civil standard. In dismissing the Plaintiff’s allegation of causation of ongoing injuries due to the collision the Court stated as follows with respect to the Civil Burden of Proof:
 It may well be that Mr. Costello’s continuing back pain is the result of soft tissue injuries resulting from the accident. However, on the balance of probabilities, Mr. Costello has failed to persuade me that this is the case…
 Dr. Reebye’s carefully worded report really says it all: “[t]he soft tissue injuries were responsible for his symptoms and limitation soon after the accident” [emphasis added] and, “[t]he injuries sustained were not severe enough to aggravate his pre-existing conditions.” I note that it is possible that Dr. Reebye is wrong. It could be that the whiplash from the accident did affect Mr. Costello’s spine in a way that affected the area of the surgery. But without a full and proper medical investigation with the aid of diagnostic imaging, I have no way of knowing that. The body of evidence that has been put before me on behalf of Mr. Costello, who bears the burden of proving his case on the balance of probabilities, just does not do that. The evidence neither convinces me that the soft tissue injuries from this minor rear-end collision have independently resulted in the debilitating pain and discomfort I have no doubt he now suffers, or that those injuries in some way affected the area of his spine which was the subject of the 2006 surgery or in some way caused his pre-existing condition to re-assert itself.
 I am convinced on a balance of probabilities that Mr. Costello did, indeed, suffer soft tissue injuries in the motor vehicle accident which caused him pain and discomfort for a period of time that cannot be quantified precisely but, before the time of trial, would have been resolved. Dr. Reebye’s suggestion in cross-examination that Mr. Costello could experience effects of the accident for five to ten years is implausible and at odds with his report. As noted above, I have no doubt that Mr. Costello is suffering back pain but I am not satisfied, to the standard required on a civil trial, that his current problems result from the injuries sustained in the motor vehicle accident. ..
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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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