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Tag: credibility

“Extremely Problematic” Testimony Gives Rise to Modest Damage Assessment For Chronic Injury

Given the personal and subjective ways chronic injuries can impact an individual giving reliable evidence is important.  If adverse credibility findings are made in the course of an injury trial this can significantly impact a court’s overall view of the evidence.  Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, dealing with such a fact pattern.

In today’s case (Kaur v. Tse) the Plaintiff was injured in a 2016 collison.  The Defendant admitted fault.  The Court found that the Plaintiff suffered from chronic myofascial cervical pain and chronic mechanical pain localized on her coccyx as a result of the collision and some symptoms were ongoing at the time of trial.  However non-pecuniary damages were only assessed at $17,000 in part due to mitigation issues and further in part to credibility issues the court had with the Plaintiff’s evidence.  In reaching this quantum and criticizing aspects of the Plaintiff’s evidence Madam Justice Tucker provided the following reasons:

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Plaintiff Ordered to Pay Double Costs After Jury Dismisses Injury Claim

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, ordering a Plaintiff to pay double costs to a Defendant after a jury dismissed her injury claim.
In the recent case (Brar v. Ismail) the Plaintiff alleged injury following a collision and sued for damages.   Prior to trial the Defendants offered to settle for $50,000.  A further offer of $65,000 was tabled.  Neither side compromised and the Plaintiff proceeded to trial where damages of over $500,000 were sought.  The Defendants attacked the Plaintiff’s credibility and introduced surveillance evidence which the court called “compelling”.
The Jury ultimately dismissed the claim.  In ordering that the Defendants were entitled to pre offer costs and post offer double costs Mr. Justice Myers provided the following reasons:

[23]     The issue of whether an offer to settle ought reasonably to have been accepted is determined by the factors existing at the time of the offer and not with the hindsight of a judgment or jury verdict.

[24]     The main point this question hinges on is whether the credibility issues were obvious and significant enough to the plaintiff so that she ought to have accepted one of the offers.

[25]     From at least the time the video surveillance was delivered, it was obvious that the plaintiff’s credibility would be front and center.  There were inconsistencies between what it showed and what she relayed to her experts.  It was also obvious these inconsistencies would have a significant impact on her case.  I do not agree with the plaintiff that what was seen in the video was not far off what she had had told her experts or said in evidence.  Often video surveillance is not compelling; here it was.

[26]     Moreover, as argued by the defendants, the plaintiff also had further credibility difficulties that ought to have been apparent to her counsel:

·        The plaintiff’s evidence was that she hit her head in the accident and had immediate dizziness and nausea including vomiting at the accident scene; however, these complaints were not documented in her GP’s records during her initial visit, which was only hours after the accident.  Her GP testified that he would have made a note of these complaints if they were made to him.

·        The plaintiff’s evidence that she was disoriented and vomited at the accident scene was contradicted by Mr. Ismail’s evidence and that of his brother;

·        In her discovery, the plaintiff said she had not done any form of work, whether paid or voluntary.  She had also stated during her examination for discovery that she never helped her husband in his business (even though she was president and 100% shareholder).  However, at the trial she acknowledged she had in fact done work for her husband’s business since the accident.  Further the surveillance video showed the plaintiff working at an elections voting station.

·        At examination for discovery the plaintiff stated she did not have any other sources of income other than what she received from her employer, Swissport.  She also said she did not own any other properties other than her primary residence.  However, her income tax records showed significant amounts of rental income, and she later admitted at trial that she and her husband received rental income from a property she was on title for.  Her reported rental income was more than she had ever earned from Swissport before the accident.

[37]     I said I would return to the timing of the second offer  There was nothing to prevent the defendants from providing the surveillance far sooner, given its importance; as noted above, it was completed in January 2018.  The fact that it was disclosed in compliance with the rules does not mean that its timing cannot be a consideration with respect to the discretion to award double costs.  As well the $65,000 offer, which was not delivered until five days before trial, could have been delivered sooner.  This would have given the plaintiff more time to consider her position, without prejudicing the defendants.  Therefore, in my view, the defendants should receive ordinary costs up to and including the first five days of trial and double costs after that.

Court Critical of Doctor's "Self Diagnosed" Personal Injury Claim

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, making critical findings in a personal injury claim.
In today’s case (Nagaria v. Dhaliwal) the Plaintiff, a physician, was injured in a 2014 rear end collision.  The Defendant admitted fault.  The Plaintiff received little medical care following the crash instead relying largely on self diagnosis and self treatment.  The Court rejected the severity of the Plaintiff’s advanced claim finding “the plaintiff is not a reliable witness nor a competent historian. There is considerable exaggeration in his evidence.”
The Court criticized the Plaintiff’s self-treatment and credibility with the following comments:

[42]         The plaintiff repeatedly testified that he chose not to follow the course of medical treatment against the advice of Dr. Strovski because he said that it would leave his patients wanting for his medical care. Leaving aside prescribed medication entirely, I find this explanation to be inconsistent with the policy of the College of Physicians on “Treating Self” and contrary to the simple skills of organization that following the prescribed treatment regime would have required.

[43]         The “Treating Self” policy is clear that self-treatment may affect the objectivity of the medical treatment which a doctor provides. Exceptions, according to the policy, may be made when “the medical condition is minor or emergent; and no other physician is readily available.” Curiously, when this passage was read to the plaintiff during cross-examination, he ignored the above quoted lines and spoke only about self-prescribing narcotic medications which had nothing to do with the case at bar. The plaintiff was evasive in failing to respond to the fact he had self-diagnosed a soft tissue injury and self-prescribed a course of treatment. The circumstances did not involve an emergent situation. The alleged medical condition was not minor; as had it been a minor condition, this action would not have been commenced in this Court. I do not accept the explanation that following the advice of Dr. Strovski would have left the plaintiff unable to practice medicine or otherwise provide services to his patients.

[46]         In this case, the plaintiff did not follow the policy of his profession as he failed to record any of his own symptoms, their occurrence, development, or resolution. Further, he refused a prescribed treatment regime in favour of self-treatment. As noted above, the explanation for self-treatment by the plaintiff lacks objectivity, the very flaw recognized by the College of Physicians and Surgeons.

Mr. Justice Ball found the Plaintiff suffered only minor soft tissue injury and assessed damages at $19,000.  In reaching this assessment the Court provided the following reasons:

[81]         The plaintiff was not a reliable nor a credible witness for the reasons which I have outlined above. The prognosis of Dr. Rickards — if the prescribed treatment plan were followed — expected the reduction or resolution of the symptoms of the plaintiff within a two to four month period. On the evidence before this Court, I am satisfied that the injury caused by the accident, which has been proven on a balance of probabilities, was a minor soft tissue injury. Had the prescribed treatment regime — initially prescribed by Dr. Strovski in 2011 — been followed by the plaintiff, the injury and its symptoms would have resolved in the two to four month period suggested by Dr. Rickards. The failure of the plaintiff to follow the prescribed treatment regime was unreasonable as found above, and constitutes a failure to mitigate.

[82]         The soft tissue injury did not interfere with the ability of the plaintiff to continue his medical practice six days a week or otherwise interfere with his chosen medical speciality. The activities of the plaintiff outside of his practice — sporting activities in particular — have been reduced to some degree, but it is not possible to speculate how those activities have been affected by the soft tissue injury given the lack of evidence on this topic. Further, without completion of the prescribed treatment regime by the plaintiff, the extent and duration of the reduction of activities cannot be predicted and has not been proven.

[83]          In these circumstance, and after a review of the authorities cited above and by counsel, the award of non-pecuniary damages in this case is $19,000. The failure of the plaintiff to mitigate his loss will result in a reduction of that award by ten per cent (10%). The total award for non-pecuniary damages is therefore $17,100. Based on my findings above, the claim for special damages has not been made out and there will accordingly be no award of special damages in this case.

Video Surveillance Helps Deflate Personal Injury Claim

In the world of personal injury lawsuits, video surveillance usually amounts to hours of filming benign activity entirely consistent with a Plaintiff’s known injuries.  Occasionally, however, video helps capture images inconsistent with a Plaintiff’s presentation.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, with such an outcome.
In today’s case (Ma v. Haniak) the Plaintiff was involved in three collisions and sued for damages.  Fault was admitted by the Defendant motorists.  The Plaintiff was self-represented and sought approximately $1.4 million in damages.  The Court largely rejected the Plaintiff’s claims and awarded a small fraction of her sought damages.  In reaching the conclusion that the Plaintiff’s claim was exaggerated Mr. Justice Armstrong noted as follows when reviewing video surveillance evidence:

[114]     The defendants tendered video surveillance of Ms. Ma from 2007, 2009 and 2011.

[115]     On September 21, 2007, Ms. Ma was observed working with her brother in their newspaper delivery business. Mr. Maung is seen loading the car with the newspapers. She appears to move without any restrictions in her range of movement and appears to be flexible and capable of moving bundles of newspapers. Although she shows no overt signs of pain, it is not possible to ascertain her actual condition from the video.

[116]     Ms. Ma was able to crouch down, reach in and manually rearrange paper in her car and move several paper bundles.

[117]     Mr. Maung appears physically capable of moving bundles of newspapers to the vehicle from nearby pallets.

[118]     Between October 29, 2009 and November 2, 2009, Ms. Ma was observed and filmed by a private investigator. She was seen driving, entering and exiting her Mazda MPV without any apparent difficulty. Her movements seemed unrestricted and flexible; she carried a cane but did not use the cane to stabilize her walking or support herself.

[119]     In August 2011, more than one-and-a-half years after MVA #3, Ms. Ma was observed and filmed by a private investigator; the recording lasts between 30 and 40 minutes of film.

[120]     At Ms. Ma’s examination for discovery, she testified that she suffered pain when carrying things. She said she avoided carrying items and used the basket on her walker when necessary.

[121]     Nevertheless, on August 9, 2011 Ms. Ma was attending an appointment with Dr. Magrega and used her walker when entering and leaving the office. Later that day she is seen walking and carrying items at a McDonald’s restaurant without any apparent limitation or need for assistance. On that day Ms. Ma is seen exiting her vehicle and walking towards a restaurant with a normal gait, moving at a normal speed and without the benefit of a walker or wheelchair. She collects food from a counter and carries a tray with a drink on top and a separate bag to a table inside the restaurant; she then walks outside to her car carrying a drink and a bag for a person in the vehicle. Ms. Ma’s comportment in this video is significantly different than her comportment at trial. At trial, she used a walker to move in the room and to the witness box. She did not demonstrate the marked flexibility and physical movement that appears on the video.

[122]     What is observed on the video demonstrates significantly less restricted movement than she described in her testimony.

[123]     She testified that when using the sliding doors to enter her van, she suffered severe pain and relied on family members and a cane to open and close the doors when possible. On the date of the video, she is seen freely opening and closing the doors, leaning in and delivering food to others who had not come into the restaurant. The video of the plaintiff was dramatically different from her self-described limitations.

[124]     She testified that if she bumped into a person while being out and about, she would experience excruciating pain; she is seen to be bumped while in the restaurant lineup and shows no evidence of excruciating pain.

[125]     On the video, she was clearly functioning without evidence of pain or limitation in her movement. She walked briskly and without the use of a cane or walker. Her facial expression showed no evidence of pain or discomfort.

[126]     I except that surreptitious video presentations of injured plaintiffs can be misleading; in the circumstances of this case I am satisfied that Ms. Ma’s physical movements on August 9, 2011 were entirely incongruous with her testimony concerning her physical ability and dexterity at the time and since.

[127]     Her only explanation for the apparent differences between her testimony and the video presentation was that she was “tricked” at the discovery. She also said that the limitations in her ability to move or walk distances without a walker do not become apparent until she has been active for approximately ten minutes.

[315]     I agree with the defence that the plaintiff’s claim concerning the level of pain she has experienced after the accidents is wholly inconsistent with her appearance at trial and on the surveillance videos. Although the August 2011 video was taken almost five years before trial, the plaintiff’s examination for discovery evidence, which was given within two weeks of the video, is telling. It contradicted the plaintiff’s appearance in the video surveillance films. Her testimony and use of a walker at trial was consistent with her evidence at the examination for discovery but equally inconsistent with observations of her in the various surveillance videos. From these inconsistencies, I make an adverse finding about Ms. Ma’s credibility.

"Outlandish" Uncorroborated Injury Claims Rejected

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, largely rejecting many “outlandish” claims in a personal injury lawsuit that were not supported by medical evidence.
In today’s case (Lamb v. Fullerton) the Plaintiff was involved in several collisions and sued for damages.  He claimed aggravation of a historic head injury and further claimed severe consequences including ‘vomiting 100 times in a day‘ and severe bowel incontinence.  The reported symptoms and any relationship to the collisions in question were not corroborated by medical evidence.  The court was critical both of the lack of evidence in support of the claim and the Plaintiff’s credibility.  In rejecting these and other portions of the claim Madam Justice Warren provided the following reasons:
9]             Mr. Lamb’s testimony was unsatisfactory.  Regrettably, I have concluded that it is almost wholly unreliable in establishing that any injury or aggravation of injury was caused by these accidents, particularly in the complex circumstances of a serious, ongoing pre-existing condition and two intervening accidents that are not the subject of this action.
[10]         Mr. Lamb unreasonably persisted in making claims that were inconsistent with either independent evidence or other aspects of his own evidence, and he made little, if any, attempt to explain the inconsistencies.  Two particularly striking examples were his insistence that his behavioural and memory problems were aggravated by the accidents in question and his repeated assertion that he broke his clavicle in the December 8, 2010 accident…

[14]         Mr. Lamb also baldly advanced claims, some of which were out of the ordinary and even outlandish, without corroborating evidence in circumstances where one would expect corroborating evidence to exist.

[15]         Mr. Lamb claimed to have been vomiting 100 times in a day.  He claimed that the bowel incontinence was so severe that he was using countless incontinence pads and 20 gallons of isopropanol annually to clean his soiled clothing.  He offered his own opinion as to the cause of these conditions, which was blood accumulating in his stomach as a result of bleeding from his esophagus caused by wincing and cringing due to the pain.  Yet, he appears to have taken few, if any, steps to obtain medical attention for these conditions; he offered no medical evidence to support his own dubious opinion as to the cause of these conditions; and he produced not even a single receipt for isopropanol or incontinence pads…

[20]         Mr. Lamb acknowledged having been untruthful in other contexts.  He admitted that he told a surgeon who performed his cataract surgery in June 2012 that he had undergone chemotherapy for leukemia but he seemed to reluctantly acknowledge during the trial that he has never had leukemia…

[85]         As I have already explained, because Mr. Lamb’s subjective reports provide the foundation of his claims it is particularly important to examine his evidence carefully.  For the reasons already expressed, I have concluded that his evidence was neither credible nor reliable.  He has failed to marshal any persuasive independent corroborating evidence.  Most importantly, he has presented no medical evidence in respect of the cause of the injuries and conditions he claims to suffer from; whether his pre-existing conditions were aggravated by the accidents; if so, the extent of the aggravation; or the impact of the two intervening accidents on his current condition.  In the circumstances of this case, such evidence is necessary in order to establish possible causes of the injuries and conditions about which he complains:  Deo v. Wong, 2008 BCCA 110 at para. 19.

Plaintiff "Antics" During Cross Examination Undermine Injury Claim

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, rejecting substantial aspects of a personal injury claim due in part to concerns about plaintiff credibility.
In today’s  case (Siddall v. Bencherif) the Plaintiff was injured in 2 separate collisions that the Defendants accepted fault for.  Much of her claim was rejected at trial where the presiding judge raised concerns about her credibility and “antics” while testifying.  In concluding that “the plaintiff was not a particularly credible or reliable witness regarding the effect that the Collisions had on her” Mr. Justice G.C. Weatherill provided the following reasons:
[183]     A plaintiff who accurately describes his or her symptoms and circumstances before and after the collision without minimizing or embellishing them can reasonably anticipate that the court will find his or her evidence to have been credible and reliable. 
[184]     Regrettably, that did not occur in this case.   The plaintiff was not particularly forthcoming during her evidence-in-chief.  Significant aspects of her story were not revealed until cross-examination at which point she was evasive and took great pains to minimize the history of her pre-Collisions physical and emotional issues.  Despite insisting that her memory was “good”, on several occasions she had to be taken to her relatively recent examination for discovery transcripts before she was prepared to recall her previous evidence.  She had difficulty agreeing that her income tax returns reflected her actual income because she could not remember whether she had worked more than what they reflected.  Although the details of her many pre-Collisions psychological and psychiatric issues were set out in voluminous historical clinical records, including the answers to questionnaires in the plaintiff’s own handwriting, she was either unable to recall, or unwilling to admit to them.  She was also unable to recall significant portions of the clinical history set out in the various expert reports filed in this action that had been provided by the plaintiff herself. 
[185]     When clinical records or other documents were put to the plaintiff that contradicted her evidence, she insisted that the documents were likely in error or that she had been misinterpreted or misunderstood. 
[186]     The poor quality of the plaintiff’s memory at times when it suited her is at odds with her obvious high level of intelligence.
[187]     During her cross-examination, the plaintiff became increasingly evasive, argumentative and adversarial.  She often launched into lengthy, rambling answers that were replete with speculation and devoid of factual foundation.  She repeatedly played down her pre-Collisions symptoms as minor and inconsequential and emphasized her post-Collisions symptoms as new and debilitating.
[188]     Although the plaintiff appeared to have no difficulty reviewing documents and answering questions during her direct examination, she requested a recess early in her cross-examination, complaining of having difficulty extending her arms to read a one page document due to pain in her arms and shoulders.  However, she did not indicate any further difficulty with her arms during the remainder of her lengthy cross-examination, interrupted as it was by other witnesses over four days.  Indeed, throughout her cross-examination she frequently used her arms to gesture during her answers, as people typically do when attempting to make a point.  She continually alternated between standing and sitting in the witness box, which is in noticeable contrast to Ms. Tencha’s observations during the Functional Capacity Evaluation that the plaintiff was capable of engaging in casual sitting for 1 hour and 40 minutes.
[189]     The plaintiff’s antics and demeanour during cross-examination, as well as her numerous and vehement attempts to convince the court of her ordeal, evoked the oft-quoted line from Hamlet: “the lady doth protest too much”.
[190]     I find that, overall, the plaintiff was not a particularly credible or reliable witness regarding the effect that the Collisions had on her, which I find she exaggerated.  Unfortunately, I am unable to give her evidence in that regard much weight. 
[191]     As a consequence, I have not found the opinion evidence of the medical experts of much assistance.  That is not because the experts are lacking in the necessary experience and expertise in their respective fields.  Indeed, they are all highly qualified.  Rather, it is because medical experts necessarily take a patient’s complaints at face value and then offer an opinion based on those complaints.  Here too they relied for their respective opinions to a significant degree on what they were told by the plaintiff without the benefit, as the court had, of a thorough and lengthy cross-examination of the plaintiff during which her self-reports and evidence generally were tested.
[192]     In contrast to the plaintiff, ….gave his evidence in a down-to-earth and forthright fashion.  He was clear, candid, animated, articulate and passionate about his testimony.  I find that his evidence was credible and generally reliable.

Court of Appeal Split on Whether Credibility Finding on Misapprehended Evidence Warrants New Trial

Reasons for judgement were released today with split reasons but the BC Court of Appeal addressing whether a new trial is warranted where a Court makes an adverse credibility finding based in part on misapprehended evidence.
In today’s case (Zajaczkowski v. Grauer) the Plaintiff was injured in a collision and sued for damages.  At trial the Plaintiff’s diminished earning capacity claims were dismissed with the Court finding there were issues with the Plaintiff’s credibility.  The trial judge misapprehended some of the Plaintiff’s evidence with respect to his education.  The Plaintiff’s appeal was dismissed but dissenting reasons were provided finding a a new trial was warranted in these circumstances.
The majority provided the following reasons:
[44]         While the judge clearly accepted the thrust of this evidence, which was evidence of fatigue and pain, he also found that it afforded “an insufficient factual underpinning for any compensation for loss of earning capacity”. In my view, the inability of the trial judge to find a factual underpinning for the claim lay not in an error of law; the trial judge expressly noted, at para. 51, that “a plaintiff need only show a real and substantial possibility of a future event leading to an income loss, in accordance with Perren v. Lalari, 2010 BCCA 140”. The claim for loss of earning capacity failed because the judge found the appellant had not met the evidentiary burden described in Perren. He did not accept the appellant’s own evidence of his limitations. The witnesses provided some anecdotal evidence of occasions when the appellant was limited in his work but that did not establish the appellant was, overall, unable to work as much as he had worked before his injury. As the respondents’ counsel submitted, the impact of the appellant’s lingering pain upon his capacity to work may have been so minimal as to be difficult to assess. I cannot say the trial judge erred in coming to the conclusion that the evidence did not support a claim under this head of damages. I would also dismiss the appeal founded upon this argument.
In dissent Madam Justice Saunders reasoned as follows:
[53]         The question on both past and future earnings loss is not whether the appellant’s income was diminished or will be diminished from that which he had earned before the accident, but whether it was diminished or will be diminished from that which he could have earned but for the accident. It appears that the appellant’s business was thriving, considerable work was available to him and it was, in the vernacular, a time in which he could “make hay”. If the appellant’s earnings were lessened by reason of the injury from the accident, the appellant is entitled to be compensated for the diminishment.
[54]         The evidence of the three witnesses discussed above supports the appellant’s evidence that from time to time his injury limited his hours and intensity of work. If accepted, the evidence of these witnesses alone, and combined with the appellant’s evidence, supported a claim for past wage loss of some amount, and possibly a claim for future wage loss on the capital asset approach of Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.)per Finch J., although certainly not in the scale claimed by the appellant at trial.
[55]         The judge did not review the evidence of these witnesses in any detail and said only that “I accept the thrust of the evidence from those witnesses, that Mr. Zajaczkowski had less energy and more pain after the accident”. The judge concluded, “Their testimony … did not lead to the further conclusion, that in the result, the Plaintiff worked less overall and earned less overall.”
[56]         It is here, I consider, that the judge’s assessment of the appellant’s credibility creates the impact that requires this court to interfere with the order appealed. In my view, one cannot say that absent the error in that credibility assessment, there would have been such a lack of credit given to the substance of the evidence of these witnesses. In other words, the misapprehension of evidence in the credibility assessment leaks into the result of the trial, with the effect that the order made by the judge in respect to earnings loss cannot stand, in my view.
[57]         In reaching this conclusion I have not addressed the last strong conclusion of the judge concerning evidence of the Balano invoice. I agree that such evidence was understood correctly by the judge, and that alone it could have supported rejection of the appellant’s evidence. However, the judge made the appellant’s evidence of his education one leg of what was a relatively brief discussion of credibility, and that leg is broken.
[58]         I would echo the words of Mr. Justice Hall in Loveridge v. British Columbia, 2007 BCCA 425: “The appellant was entitled to a correct consideration of the full substance of his case”. In the circumstances I have described, I do not consider the appellant received that consideration. I therefore conclude that the appeal should be allowed and a new trial ordered.

$20,000 Non-Pecuniary Assessment for 17 Month Long Soft Tissue Injury

Reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, assessing $20,000 in non-pecuniary damages for recovered soft tissue injuries.
In today’s case (Scott v. Hoey) the Plaintiff was involved in a 2006 collision caused by the Defendant.  The Plaintiff was 13 years old at the time of the collision and alleged she sustained injuries which permanently impacted her and sought significant damages.  The Court rejected much of the Plaintiff’s claim noting credibility concerns.  The Court did accept that the collision cause soft tissue injuries which fully resolved in 17 months.  In assessing non-pecuniary damages of $20,000 Mr. Justice Bowden provided the following reasons:

[169]     In my view the facts and reasoning of Barrow J. in Jensen v. Felker, 2008 BCSC 541, suggest that the amount of non-pecuniary damages awarded in that case approximate those that should be awarded in the case before me. After reviewing a number of authorities where short term injuries produced symptoms in the plaintiffs for 12 to 14 months, Barrow J. awarded non-pecuniary damages of $18,000.

[170]     While the evidence supports a finding that the plaintiff’s injuries resolved within a period of about six months following the accident I am prepared to assess non-pecuniary damages on the basis that some of her symptoms may have continued until November 2007, which is a period of about seventeen months after the accident.

[171]     I award the plaintiff $20,000 in non-pecuniary damages.

BC Court of Appeal – Scientific Evidence Not Needed in LVI Injury Claims

Reasons for judgement were released today by the BC Court of Appeal (Pacheco v. Antunovich) overturning a trial judgement which dismissed an injury claim following a so-called low velocity impact.  The Court found the trial judge made palpable and overriding errors in his assessment of the evidence.  In reaching this conclusion the Court of Appeal provided the following comments:
[35]         As previously noted, the judge found the appellant’s claim of injuries arising from the accident not to be reasonable or credible in the absence of independent or scientific evidence of how the mechanics of such a minor collision could have caused the injuries claimed. With respect, in my view the judge erred in finding that the appellant only “thought” her car was pushed forward in the collision when she in fact said that it was pushed forward (although she did not know how far). He also misapprehended her evidence that the collision caused two black dents to her bumper by describing them as “two small scratches” (a description advanced by defence counsel). He did not consider or he overlooked the appellant’s evidence that at the time of the collision her hands were on the steering wheel and her right foot on the brake, and how that positioning of her body might be relevant to the mechanics of the collision and her subsequent complaints of lower back and right side gluteal pain. Most significantly, however, he appears to have ignored the opinions of each of the appellant’s doctors that her lower back and right side gluteal pain were caused by the collision, which the respondents did not counter by any evidence to the contrary…

[43]         The need to carefully examine any inconsistencies and contradictions in a plaintiff’s evidence, with the evidence as a whole, before rejecting that party’s evidence based on demeanor alone, was echoed in Jezdic. In that case, which also involved a minor collision, Sigurdson J. dismissed the action based on a negative assessment of the plaintiff’s credibility. That assessment, however, included identifying “significant inconsistencies” in the plaintiff’s evidence, both internally and with his findings of fact (para. 41), noting all the while that “there is no rule of law or physics that a person cannot be injured in a low speed collision” (para. 33).

[44]         In this case, the judge did not assess or find any inconsistencies or contradictions in the appellant’s evidence, either internally within her evidence or with other established facts. With respect, his findings of credibility seem to be driven, in large part, by his inference from the appellant’s demeanor at trial that she was exhibiting pain exaggeration behaviour and, also, from his erroneous findings of fact as noted above.

[45]         In the result, the appeal must be allowed and a new trial ordered.

Brain Injury Claim Dismissal Upheld Following Credibility Concerns

Reasons for judgement were released today (Minhas v. Sartor) by the BC Court of Appeal upholding a trial judgement which rejected a claim for an alleged “severe and permanent brain injury” following concerns about the Plaintiff’s credibility.
In upholding the trial judgement the BC Court of Appeal provided the following reasons demonstrating how the negative credibility finding impacted the injury claim:
[18]        In the main, the assumptions relied upon by the doctors in reaching their opinions derive from Mr. Minhas’s account of himself. However, the judge found that Mr. Minhas was dishonest, that his evidence was not to be believed, and that the history he provided to the doctors was inaccurate. She said:
[111]    I am satisfied that all of Mr. Minhas’s testimony – with the possible exception of statements against interest – must be regarded with scepticism and given little or no weight. I am also satisfied that to the extent any expert’s opinions are based in whole or in part on information provided to the expert by Mr. Minhas, the opinions of that expert must be carefully scrutinized and are likely to be unsupported.
[112]    I am reminded of the statement made by Justice Southin, as she then was, in Le v. Milburn, [1987] B.C.J. 2690, as follows:
When a litigant practices to deceive, whether by deliberate falsehood or gross exaggeration, the court has much difficulty in disentangling the truth from the web of deceit and exaggeration. If, in the course of the disentangling of the web, the court casts aside as untrue something that was indeed true, the litigant has only himself or herself to blame. (para. 2).
[19]        The judge’s conclusion of Mr. Minhas’s veracity and reliability, with respect, was not surprising given the many instances of dishonesty on his part evident in the record. That evidence includes different versions given by Mr. Minhas at different times as to his education, different versions advanced by him of his work history in Alberta, his routine filing of false tax returns with Revenue Canada, an account made by him to an insurance adjuster (in a previous motor vehicle accident) that he had been working when his tax return did not reflect any employment, his admission that he was prepared to threaten physical harm to get what he wanted, his filing a false claim (or claims) with Workers’ Compensation, his travel outside the country while claiming he was entitled to disability benefits, his testimony he received a generous dowry from his wife’s family in contradiction to his wife’s evidence that her family did not pay a dowry, his preparation of a false resume, and his provision of false employment references. This is only a partial listing of the inaccuracies and untruths that riddle Mr. Minhas’s account of his pre-accident life and his personal history.
[20]        Also germane to the assessment of the existence of brain injury is evidence that Mr. Minhas was not the easy-going person before the trial he and others testified he was. The pre-accident evidence demonstrates incidents in which Mr. Minhas was threatening or aggressive to others…
[24]        There is no real challenge taken to any of the judge’s descriptions of the evidence, although there is explanation proffered. But it was up to the judge whether to accept the explanation, and it is not up to us. As this was a case highly dependent on credibility findings, it seems to me that if the claim of brain injury was to be won, it was to be won at trial. Without the finding of fact that Mr. Minhas had suffered a brain injury, it is simply premature to analyze the theories of causation.
[25]        I see no basis upon which we may interfere with the judge’s conclusion that Mr. Minhas did not prove he had sustained a brain injury in, or caused by, the accident. I would dismiss the appeal.