Reasons for judgement were released this week by the BC Supreme Court, Prince George Registry, outright rejecting a personal injury claim as a result of credibility concerns.
In today’s case (Fancy v. Gareau) the Plaintiff was involved in a 2008 rear end collision. Fault was admitted. At the time of the collision the Plaintiff was on a WCB claim. She claimed the collision caused a neck injury and that this was not a pre-existing problem. In the course of the trial this claim proved unreliable and the Court ultimately dismissed the claim. In reaching this result Mr. Justice Parrett noted as follows:
 Perhaps the most startling reversal in her evidence was the cross-examination of the plaintiff about a portion of Exhibit 8.
 This document was a spreadsheet prepared by the plaintiff and her husband as a part of their submission to the Workers Compensation Board to help establish that she had suffered “an upper back injury”. In item 11 on page 2 of the spreadsheet the plaintiff specifically refers to the August 5, 2008 Physiotherapy Initial Notification (Exhibit 10) referred to above. The excerpt contained in item 11 specifically notes that the “Injury Recorded on Claim: Neck” and then records the following submission regarding the document:
Corroborating Documentation of stiff neck from workplace injury (July 8, 2008) – this injury is NOT from the MVA as suggested by CD in Item 32.
 The last column of this spreadsheet is entitled “Proof of:” and is divided into two columns, the first of which is “Upper back/left arm injury”.
 The plaintiff entered “Yes” in this column with respect to Item 11.
 When confronted with this document the plaintiff conceded that when the Workers Compensation Board case manager said that the neck injury was not as a result of the workplace injury but from the motor vehicle accident she disagreed and said ‘no, I injured my neck in the workplace accident’.
 When pressed on this point she advised the court that:
The upper back, to me, includes the neck.
 This evidence was given without the faintest embarrassment or apparent realization that the previous day she had testified that:
When I say upper back I do not mean my neck.
 This is a personal injury action in which the issue is causation. Simply put the question amounts to this – Was the plaintiff injured or did she have existing injuries or conditions aggravated by the motor vehicle collision on September 30, 2008?
 The evidence presented to the court by the plaintiff is devoid of medical evidence and opinion touching on the issue of causation.
 The only expert opinion placed before the court is that of Dr. McKenzie who first saw the plaintiff some 28 months after the motor vehicle collision. In providing Dr. McKenzie with the history he used as the foundation of his opinion the plaintiff misrepresented and altered the facts and withheld critical information about her physiotherapy treatments and pre-existing symptomology.
 The effect of her actions destroyed any value of Dr. McKenzie’s opinion…
 The plaintiff’s action is dismissed.
Update March 10, 2015 – The below decision was overturned by the BC Court of Appeal which found that the trial judge made “palpable and overriding error” in the assessment of the evidence. A new trial was ordered.
Credibility plays a vital role when advancing a claim with subjective injuries. Negative credibility findings can undermine such a claim as was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.
In this week’s case (Pacheco v. Antunovich) the Plaintiff was involved in “a very minor” rear end collision in 2012. The Court found that the Defendant was “travelling at a speed of no more than two kilometers per hour at the time of the collision“. The Plaintiff alleged injury and sought over $100,000 in damages at trial. The Court rejected the entirety of the claim and ordered the Plaintiff to pay the Defendant’s costs. In reaching this decision the Court was critical of the Plaintiff’s credibility and provided the following reasons:
 The credibility of the plaintiff is very important in a case like this where the foundation for most of the plaintiff’s complaints is subjective. Therefore, it is prudent for me to deal with the issue of credibility.
 The plaintiff was cross-examined on her medical records for the period before the collision. It is clear from those records that the plaintiff attended her doctor on a very regular basis in the months and years preceding the collision. Although the plaintiff testified that she was active in sports before the collision, her medical records seem to indicate that she visited her doctor in relation to ongoing pain and repercussions she claimed she was still suffering from her previous injuries. In fact, one of these visits in which she complained of this type of pain occurred about a month before the collision.
 Another result of the cross-examination of the plaintiff on her medical records was the fact that she previously complained of weight gain and hair loss in September 2010. This is exactly one of the claims she alleges in this action as a result of the collision.
 Further, throughout the trial and at five or ten minute intervals, the plaintiff would stand up from her seat and continuously stretch so that I could “see” the pain she experiences when she sits in one position for a period of time…
 I did not find the plaintiff to be a very credible witness at trial. Her testimony was not reasonable within the circumstances of the very minor “fender bender” in this case. I find that she had a strong penchant for gross exaggeration and, as such, I do not accept her evidence…
25] I find that the plaintiff has failed to prove on a balance of probabilities that she suffered any injury as a result of the collision. The plaintiff’s action is therefore dismissed with costs.
Plaintiff credibility is integral to prosecutions involving chronic soft tissue injuries. If a Plaintiff’s credibility is successfully attacked the underlying claim can be impacted accordingly. Reasons for judgement were released this week by the BC Supreme Court, Nelson Registry, demonstrating this.
In this week’s case (Harshenin v. MacLeod) the Plaintiff was involved in a significant rear end collision in 2008. The Defendant admitted fault for the crash. The Plaintiff alleged the crash caused long standing injuries which forced him into early retirement. The Plaintiff sought damages of over $470,000. The Court, however, had serious concerns about the plaintiff’s credibility and largely rejected his claim. In awarding less than 10% of the damages sought Mr. Justice Cole provided the following comments about the plaintiff’s credibility:
35] At the same time the plaintiff was claiming, since the date of the accident to the date of trial, that he spent approximately $36,162.29 on out-of-pocket expenses for transportation, accommodation, meals and massage therapy as a result of the accident. Many of the out-of-pocket expenses were shown to be either not related to the accident, excessive, or lacked proper documentation.
 For instance, the plaintiff would claim massage therapy while he was in Lumby/Vernon, visiting his girlfriend, and then staying in a hotel and charging meals for both himself and his girlfriend. He failed to provide documentation in respect to the massage therapy. He travelled from Castlegar to the Lumby/Vernon area on February 12, 2008, which is a 4 ½-5 hour drive; he also travelled to the Lumby/Vernon area to visit his girlfriend and for a massage on March 13, 22, 31, April 10, and 30. In the latter part of May he hauled his fifth-wheel trailer to Vernon which took approximately 8-9 hours and then went to Kamloops with his girlfriend to purchase a new fifth-wheel trailer. What is most telling is that, although he said the massage therapy was somewhat of a unique nature that was provided to him by the individual in Lumby, those trips ceased when his relationship with his girlfriend was terminated.
 The plaintiff also claimed receipts for meals for two people in Howe Sound and Squamish on two separate occasions but could not explain the purpose of those trips, and there was no documented evidence that he was there for a medical purpose. There is also a group of three receipts, undated, that he claims for, but has no idea what the receipts represent. When asked why he kept receipts for food and hotel and not for massage therapy, the plaintiff gave the unbelievable answer that, “I was so relaxed I forgot to get receipts”…
 I was impressed by Ms. Cymbal as a witness. Her evidence is internally consistent; her evidence is supported by her Employment Insurance claim forms that were filed in these proceedings. I am satisfied Ms. Cymbal still, in her own way, likes the plaintiff. She appears to be a very forgiving person and I am satisfied that she was forthright and honest. I therefore accept her evidence and reject the evidence of the plaintiff and Darren when it conflicts with her evidence. I am satisfied that the plaintiff has attempted to coerce her to give false evidence with respect to his claim. I am satisfied that he sold his business to his son because he wanted to retire. His suggestion that he may lose his business and farm is without any factual basis whatsoever. His pattern of travel and spending money for the purchase of vehicles is all inconsistent with his evidence that he was broke or could be foreclosed out of his business and farm. The dishonest receipts that he has attempted to collect on for trips that were clearly unnecessary and for meals that were for him and his girlfriend are consistent with his inability to tell the truth. I am therefore satisfied that the plaintiff sold his business to his son because he wanted to retire and for no other reason…
 I am satisfied that the plaintiff has suffered a mild neck injury along with short term pain and lower and upper back pain, all of which should have, in my view, resolved within 2 months.
When suing for damages for harm caused by others a Court needs to be satisfied that the allgations fueling the lawsuit took place. In the case of opposing versions of events if a Court can not pick one over the other the claim will be dismissed. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, with such an outcome.
In this week’s case (Fergusson v. Eyrl) the Plaintiff alleged “that he was sexually assaulted on numerous occasions” by the Defendant. The Defendant denied the allegations in their entirety. Ultimately the Court concluded that both parties versions of events were plausible and given that one could not be preferred over the other the claim was dismissed. In dismissing the claim Mr. Justice Melnick provided the following reasons:
 In sum, there is compelling evidence to suggest both that the assaults alleged occurred and that they did not. But, at its best, the case of Mr. Fergusson is evenly balanced with that of Mr. Eyrl. I am not satisfied that it is more probable than not that the claims of Mr. Fergusson against Mr. Eyrl have been made out.
In yet another example of a personal injury claim being undermined by postings on social media, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating a Facebook posting undoing a claimed damage.
In this week’s case (Neyman v. Wouterse) the Plaintiff was injured in a 2007 collision. She sued for damages and her claim was partially successful. An aspect of her claim that was not accepted dealt with driving anxiety.
The Plaintiff claimed that one of the consequences stemming from the collision was “a driving phobia“. The Court did not accept this finding that the Plaintiff was “an unreliable historian“. In coming to this conclusion the Court referenced the Plaintiff’s own Facebook posting and provided the following reasons:
 Ms. Neyman’s evidence that she continues to suffer from a driving phobia, albeit one that has improved, is also questionable. Before a Facebook posting that she made on January 9, 2009 was put to her, she gave the impression in her evidence that she generally suffered from anxiety after the Accident, but that it improved with time. In her Facebook posting, she wrote about driving her mother’s manual transmission BMW late at night and at high speed. The entry reads:
Angela Neyman is finally remembering how awesome it is to drive 120 clicks on a clear road in her car (Ang ?’s Speedy G).
 I found that Ms. Neyman’s responses to questions during cross-examination about that entry reflected poorly on her credibility and indicated a mindset that continues to be heavily focused on the Accident as the cause of every problem or difficulty she has faced since. Once the Facebook entry was put to her, Ms. Neyman denied suffering any phobia to driving that involved driving very fast, late at night, and in the dark with a sore knee. I also found Ms. Neyman’s attitude towards defence counsel during the exchange to have been inappropriately condescending. I also found Ms. Neyman’s evidence to be at odds with her previous testimony that in 2011, two years after the Facebook posting, she was forced to purchase a vehicle with an automatic transmission because she found driving a car with a clutch aggravated her hip. That evidence is also inconsistent with her similar advice to Dr. van Rijn in 2010 that she found it difficult to drive a standard vehicle, “as using the clutch aggravates her back and hip pain.”
 Many of the answers she gave in cross-examination about a number of her Facebook postings reflected a mindset to minimize physical and travel-related problems not related to the Accident, and to discount as overstated those Facebook postings that suggested she was, following the Accident, pursuing an over-burdensome schedule by working mostly full-time hours while attending school on a full-time basis.
 I am, respectfully, unable to accept the submission made by her counsel that a number of Ms. Neyman’s postings on her Facebook that might reflect poorly on her credibility should be characterized as youthful boasting to her peers. Her comments on Facebook were made of her own volition. In my opinion, having observed Ms. Neyman in the witness box over the course of several days, I am satisfied that her Facebook comments accurately reflect her mindset when each posting was made.
 In all, I found Ms. Neyman to be an unreliable historian in many respects. She is unduly focused on the Accident as the cause of all of her pain and difficulties with school and work. Accordingly, I find it difficult to place meaningful weight on much of her evidence concerning the nature and extent of her pain and suffering caused by the Accident and what happened to her on impact.
If an injured plaintiff inaccurately describes the forces of a collision to physicians that can work to undermine the foundation of subsequent medico-legal reports and strike at the foundation of a personal injury claim. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating such a result.
In this week’s case (Warren v. Morgan) the Plaintiff was involved in two collisions in 2008. She sued for damages and proceeded to trial which took 22 days. The Court found that the first collision caused “no damage” to the Plaintiff and dismissed the claim. The second claim allegedly caused profound injury including long term problems stemming from both psychiatric and organic injuries. The Court largely rejected the Plaintiff’s claim and dismissed most of the claimed damages. In doing so Madam Justice Russell provided the following comments criticizing the Plaintiff’s evidence with respect the forces involved in the collision:
 These findings do not determine the issue of causation. The law is well-established that causation and the extent of an injury will be decided on the whole of the evidence: Hoy v. Harvey, 2012 BCSC 1076 at paras. 44 – 45; Christoffersen v. Howarth, 2013 BCSC 144 at paras. 56 – 57. Even if the accident was minor, Ms. Warren may have suffered serious physical and psychological injury.
 At the same time, Ms. Warren has put forward an untruthful version of the accident to her treating health care professionals, as evident in their description of the incident. For instance, Dr. Boyle’s report notes that she crashed into the car ahead of her as a result of Mr. Berretta’s vehicle hitting her from behind. This misstatement cannot be explained by the passage of time; it is a misrepresentation that affects the reliability of the medical evidence admitted in this case for the purpose of determining causation and damages…
 On the evidence, I find the plaintiff has convinced herself that the accident occurred in a certain way and that she experienced certain symptoms. She has presented this story to her treating doctors who have relied upon the accuracy of her reported symptoms. These doctors have found support for their diagnoses in other medical reports, that similarly rely upon the accuracy of plaintiff’s reported symptoms. This evidence superficially seems reliable, but its foundation is fictitious.
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.
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.
As readers of this blog know, I often extract one point of interest when creating case summaries and when more than one point is noteworthy I create multiple point specific posts. I do this because it makes it easier to search archived posts by case specific topics.
Reasons for judgement were released this week with so many nuggets it would be too burdensome to address them each individually so please excuse the multi point summary. In short this judgement showcases video surveillance successfully attacking a claim, credibility findings, comments on self-serving medical appointments, claimed care costs for medical marijuana and other points of interest. The entire judgement is worth a read.
In this week’s case (Datoc v. Raj) the Plaintiff was involved in an intersection t-bone collision. Both motorists claimed they had a green light which simply could not be true. The Court found that despite credibility problems with the Plaintiff his account of the collision appeared more reliable and the Defendant was found fully at fault. The Plaintiff claimed damages of over $450,000. The Court rejected most of these claimed damages and in doing so illustrated the following points:
Video Surveillance Successfully Used
Video evidence was presented which documented inconsistent presentations of the Plaintiff in court versus out of court. Mr. Justice Sigurdson provided the following comments in finding the plaintiff was “significantly exaggerating” his claims:
 I was shown video surveillance evidence of the plaintiff taken over a number of days in the months shortly before the trial. These videos showed the plaintiff getting in and out of his car, driving his car and taking photographs as a real estate photographer. This included squatting, and holding a tripod above his head to take pictures. He moved fluidly, in and out of the driver’s seat, apparently without discomfort. He and his counsel acknowledge a dramatic difference between his presentation on the video and his presentation in court. The plaintiff explains the difference by saying that he is capable of doing what he does on the surveillance video only because of medical marijuana he takes in the morning and at the end of the day. However, the plaintiff introduced no medical expert report to support this contention, only his evidence that this was the effect on him of his taking medical marijuana. I did not find persuasive his evidence that marijuana would have the dramatic and persisting effect that he asserts. The video surveillance showed him during different times of the day, not simply in the morning (shortly after he would have ingested a marijuana cookie), but into the afternoon as well, and his condition appeared to be no different no matter what the time of day.
 Generally, surveillance evidence can be relatively unhelpful to assess the condition of plaintiffs as to whether they are performing activities without pain, or whether their ability to perform activities is because of use of pain medication, or stoicism, or other factors. However, the difference in this case between the manner in which the plaintiff presented himself in court and how he was shown on the surveillance video was dramatic. I did not find the plaintiff’s explanation persuasive that the dramatic difference was from his taking marijuana while working, and not taking it while in court…
 I have concluded, based on a consideration of all of the evidence, that the plaintiff is significantly exaggerating the extent of his injuries.
The Plaintiff claimed damages of $20,000 for the cost of medical marijuana. While damages for medical marijuana are not unprecedented in British Columbia, a common analysis involves a plaintiff’s recreational interest in marijuana. The defendant pursued such an analysis with apparent success. In rejecting these claimed damages the Court provided the following analysis:
 On cross-examination, the plaintiff was asked about his posting on the internet under the name Nismo200sx in light of his comment that he had only taken marijuana once or twice before. Although those postings suggested an interest in marijuana beyond simply as a treatment for his back pain, the plaintiff denied any recreational interest in marijuana…
 The plaintiff said that prior to his prescription for medical marijuana, he tried marijuana once or twice, but he did not care for it. However, there is evidence to suggest the plaintiff’s interest in marijuana is more than purely for medical treatment purposes. His internet postings suggest that. Given my concerns about the reliability of the plaintiff’s evidence, and in the absence of expert evidence, I am not persuaded that medical marijuana is required by the plaintiff to treat his injuries…
 The plaintiff seeks future care costs for medical marijuana of $200 per month or $2,400 a year for a suggested award of $20,000. The evidence does not support the claim that medical marijuana is reasonably necessary: see Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.). As such, I award nothing for the cost of future care.
Frequency of Doctor Visits
The last point of interest deals with the Plaintiff’s frequency of doctor’s visits I have canvassed this topic previously. In this week’s case the Plaintiff pointed to having 128 doctor visits as supporting his claim for injury. The Court, however, found that there was no reasonable justification for this and instead came to the conclusion that the Plaintiff was simply papering his claim. The following observation was made by Justice Sigurdson:
 Up to June 2012, the plaintiff saw Dr. Irene Chan, a general practitioner, 128 times for his injuries. From July 8, 2008 to June 2012, the complaints he made to her were virtually the same on each occasion. Dr. Chen was not called as an expert witness but testified simply with respect to some of the observations she made…
 It is difficult to know what to make of the fact that the plaintiff attended his general practitioner for 128 visits and appears to have repeated his symptoms almost without change on each visit. He explained in his testimony that he went to his doctor to report changes in his condition; however his doctor noted each of his attendances with the plaintiff reporting no changes. The evidence left me with the impression that the plaintiff was creating a record of his injuries for his claim as there appears to be no reasonable medical justification for the number of attendances before his family doctor. Rather than supporting his credibility, this evidence of the numerous attendances on his family doctor left me with the opposite impression.
Reasons for judgement were released earlier this month by the BC Supreme Court, Vancouver Registry, assessing damages for lingering soft tissue injury.
In the recent case (Densem v. Sidal) the Plaintiff was involved in two consecutive rear-end impacts with the Defendant. The defendant was wholly responsible for the first impact although this caused no injury. There was competing evidence about the particular facts which led to the subsequent collision and the Court ultimately found both parties were equally to blame for this impact.
The Plaintiff suffered from soft tissue injuries to his neck and shoulders as a result of the collision. He also advanced a claim for a low back injury although the Court found that this was unrelated. In assessing non-pecuniary damages for the soft tissue injuries at $20,000 Mr. Justice Betton raised some credibility concerns with respect to the Plaintiff and provided the following analysis:
 I conclude that the plaintiff suffered soft-tissue injuries to his neck and shoulders in the motor vehicle collision. I do not accept that there has been any low back injury from the motor vehicle collision. Indeed low back injury is not among the list of injuries set out by counsel in his argument.
 I conclude that the best evidence of the severity of the soft-tissue injuries that the plaintiff did receive is the plaintiff’s activity level. The plaintiff had returned to a high level of function, including competitive cycling and a rigorous training schedule which included high demand weight training. He had also returned to work, and the evidence suggests that he did so successfully. He was able to perform his employment, which involved long periods of sitting mixed with periodic demanding physical work. This was despite his ongoing back problems which are not a result of the accident.
 The credibility issues referenced prompt me to view the plaintiff’s evidence with some caution. It is my conclusion that the plaintiff is not a heroically stoic individual who fought through pain and physical limitations to be able to engage in the activities that he did. Rather, he was able to do so because he had in fact limited or minimal ongoing symptoms…
 In summary, the plaintiff did receive soft-tissue injuries to his neck and shoulder areas. He has had ongoing lower back pain that pre-dated the motor vehicle collision, and was not affected in any material way by the motor vehicle collision. He has had a number of subsequent events and injuries that required medical intervention and affected him for various periods of time. I accept the evidence and observations of Dr. Cameron in cross-exanimation that the effect of the motor vehicle collision injuries (that is the physical injuries) has been mild.