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The Limits of Clinical Records in Injury Litigation

Written by admin on . Posted in Civil Procedure, Uncategorized. 96 Comments on The Limits of Clinical Records in Injury Litigation


(Update March 8, 2012 – the below reasoning was upheld by the BC Court of Appelal in reasons for judgement released today.  You can find the BC Court of Appeal’s Reasons here)
When an injury claimant attends examination for discovery or trial they are usually subjected to an extensive cross-examination with respect to matters contained in clinical records.  These records contain a host of information including dates of doctors visits, complaints made, diagnoses given, treatments recommended and the course of recovery of injuries.
Despite this volume of information clinical records do have limitations with respect to their use at trial.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, discussing these.
In today’s case (Edmondson v. Payer) the Plaintiff was involved in a 2005 BC motor vehicle collision.  The Plaintiff sustained various soft tissue injuries involving her neck with associated headaches.  The Defendant argued that the injuries were minor and that the Plaintiff lacked credibility.  In support of their argument the Defendant relied heavily on various entries contained in the Plaintiff’s clinical records.
Mr. Justice Smith rejected the Defendant’s argument and awarded the Plaintiff $40,000 for non-pecuniary damages (money for pain and suffeirng and loss of enjoyment of life).  In doing so the Court provided the following useful reasons addressing the use of clinical records in injury litigation:
[23] Much of the defendant’s submission on the plaintiff’s credibility flows from what is, or is not, found in the clinical records of doctors the plaintiff has seen.  It is therefore important to review the limited purposes for which clinical records are admissible.  It is easy to lose sight of those limitations in cases of this kind, where the time spent parsing a single note made by a doctor often far exceeds the length of the medical appointment that the note records…

[34]         The difficulty with statements in clinical records is that, because they are only a brief summary or paraphrase, there is no record of anything else that may have been said and which might in some way explain, expand upon or qualify a particular doctor’s note.  The plaintiff will usually have no specific recollection of what was said and, when shown the record on cross-examination, can rarely do more than agree that he or she must have said what the doctor wrote.

[35]         Further difficulties arise when a number of clinical records made over a lengthy period are being considered.  Inconsistencies are almost inevitable because few people, when asked to describe their condition on numerous occasions, will use exactly the same words or emphasis each time.  As Parrett J. said in Burke-Pietramala v. Samad, 2004 BCSC 470, at paragraph 104:

…the reports are those of a layperson going through a traumatic and difficult time and one for which she is seeing little, if any, hope for improvement. Secondly, the histories are those recorded by different doctors who may well have had different perspectives and different perceptions of what is important. … I find little surprising in the variations of the plaintiff’s history in this case, particularly given the human tendency to reconsider, review and summarize history in light of new information.

[36]         While the content of a clinical record may be evidence for some purposes, the absence of a record is not, in itself, evidence of anything.  For example, the absence of reference to a symptom in a doctor’s notes of a particular visit cannot be the sole basis for any inference about the existence or non-existence of that symptom.  At most, it indicates only that it was not the focus of discussion on that occasion.

[37]         The same applies to a complete absence of a clinical record.  Except in severe or catastrophic cases, the injury at issue is not the only thing of consequence in the plaintiff’s life.  There certainly may be cases where a plaintiff’s description of his or her symptoms is clearly inconsistent with a failure to seek medical attention, permitting the court to draw adverse conclusions about the plaintiff’s credibility.  But a plaintiff whose condition neither deteriorates nor improves is not obliged to constantly bother busy doctors with reports that nothing has changed, particularly if the plaintiff has no reason to expect the doctors will be able to offer any new or different treatment.  Similarly, a plaintiff who seeks medical attention for unrelated conditions is not obliged to recount the history of the accident and resulting injury to a doctor who is not being asked to treat that injury and has no reason to be interested in it.

[38]         The introduction of clinical records cannot be used to circumvent the requirements governing expert opinion evidence set out in Rule 11-6 of the Supreme Court Civil Rules, B.C. Reg. 168/ 2009 [Rules].  A medical diagnosis?and the reasoning that led to the diagnosis?is a matter of expert opinion. Clinical records are admissible for the fact that a diagnosis was made, but the court cannot accept the diagnosis as correct in the absence of proper opinion evidence to that effect.  Depending on the facts and issues in a particular case, the mere fact that a diagnosis was made may or may not be relevant.

[39]         Clinical records may provide the assumed facts on which an expert may offer an opinion, including diagnosis.  For example, statements made by the plaintiff and recorded in clinical records at various times may be relied on by a defence expert in concluding that the plaintiff’s current symptoms are the result of a condition that pre-dated the accident.  That does not mean that the court can itself use clinical records to arrive at a medical diagnosis in the absence of expert opinion.

[40]         Some of the defendant’s submissions must now be considered in light of these principles.

Cross Examination Beats Up RCMP Officer's Injury Claim

Written by admin on . Posted in Civil Procedure, Uncategorized. 68 Comments on Cross Examination Beats Up RCMP Officer's Injury Claim


As previously discussed, cross examination is one of the most important tools in a trial lawyer’s arsenal.  This tool can be used both during examination for discovery and trial.  Cross examination can be used to explore and weaken an opponents case.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, harshly criticizing an RCMP officer and largely rejecting his injury claim based on evidence elicited during an extensive cross examination.
In today’s case (Lee v. Jarvie) the Plaintiff was involved in a rear-end collision in 2004.  Fault for the crash was admitted.  The trial focused on the value of the Plaintiff’s claim.  The Plaintiff was in the midst of applying for the RCMP at the time of the crash.  He was injured but fortunately was able to complete his application and training and went on to be successfully employed with the police force.
ICBC accepted that the Plaintiff was injured but argued that his injury claim was exaggerated challenging “the authenticity of (the Plaintiff’s) claim“.  Mr. Justice Gaul largely accepted this argument and dismissed a significant portion of the claim.  The below are some of the critical words the Court had of the Plaintiff:
[46] Mr. Lee was vigorously cross-examined by counsel for the defendants. By “vigorous” I do not mean the questioning was improper or disrespectful of the witness. I find the extensive cross-examination of Mr. Lee successfully revealed a number of significant and illuminating facts that, but for their disclosure, the court would have been left with an inaccurate impression and understanding of Mr. Lee’s situation and condition…
[71] In addition to eliciting important facts that have placed Mr. Lee’s claim in a more fulsome context, counsel for the defendants was also able to expose a number of contradictions and inconsistencies in Mr. Lee’s evidence, of which I will address but a few…
[81] While I am hesitant to find Mr. Lee fabricated his evidence on this point, I do find him to be an unreliable and inaccurate historian with respect to the amount and frequency of medication he has been taking…
[86] In great measure I agree with the submission of the defence that Mr. Lee’s evidence shifted during the course of his testimony and at times contradicted what he had said previously at his examination for discovery. On occasion I also found myself simply disbelieving Mr. Lee….(some of his evidence) stretches the boundaries of belief beyond their limits…
[87] In general, I found Mr. Lee to be less than forthright during his evidence and on more than one occasion I found him to be deliberately evasive in answering the question asked of him…
[89] It was only on account of detailed and probing cross-examination that a number of important and salient facts relating to Mr. Lee’s claim were disclosed or clarified. These details placed Mr. Lee’s claim in a markedly different light to the one based solely on what he said in his examination-in-chief. This, in conjunction with the inconsistencies or contradictions that were exposed in Mr. Lee’s evidence, compels me to approach his evidence with caution and scepticism. In general, I am not satisfied with Mr. Lee’s evidence. Unless I have indicated otherwise in these reasons, where there is a conflict between Mr. Lee’s evidence and that of another witness, I have given greater weight to the evidence of the other witness.
Further to my previous posts on credibility, cases such as today’s are worth reviewing in full to get a sense of the types of factors trial judges take into consideration in weighing the evidence of a party.  Today’s case in particular is a good introduction to cross examination in injury claims because the Court reproduces extensive portions of the Plaintiff’s cross examination and explains the damaging effect this had on his credibility.

More on Injury Claims and Plaintiff Credibility

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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.

Challenging Opposing Witnesses: The Rule in Browne v. Dunn

Written by admin on . Posted in Civil Procedure, Uncategorized. 60 Comments on Challenging Opposing Witnesses: The Rule in Browne v. Dunn


(Update March 8, 2012 – The case discussed below was set for a new trial after the Court of Appeal found the trial judge made errors applying the law of mitigation, causation and credibility.  The Court of Appeal Judgement can be foud here)
Browne v. Dunn is an English case that’s almost 120 years old.  Despite it’s vintage its a case all British Columbian’s should be familiar with when going to trial.
The rule in Browne v. Dunn states that if you intend to contradict an opposing witness on a significant matter you must put the contradictory version of events to the witness on cross examination.  Failure to do so permits the Court to prefer the witness’ version over the contradictory version.  In practice, failure to follow the rule of Browne v. Dunn can prove damaging to a case and this was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.
In today’s case (Wahl v. Sidhu) the Plaintiff was involved in a significant collision in Surrey, BC in 2006.  The Plaintiff sustained various injuries.  At trial he sought over $1.1 million dollars.  Much of his claim was dismissed but damages of $165,000 were assessed to compensate him for physical and psychological injuries from the crash.
During the course of the trial the Defence lawyer argued that the Plaintiff was not credible and was exaggerating his claim.   The lawyer relied on evidence from various treating medical practitioners who had negative opinions about the Plaintiff’s efforts and argued that “the plaintiff is intentionally faking symptoms“.   The Defence lawyer did not, however, cross examine the Plaintiff with respect to these witnesses allegations.  Mr. Justice Chamberlist relied on the rule in Browne v. Dunn and refused to place any weight on these challenges to the Plaintiff’s credibility.  Specifically the Court provided the following useful comments:
[213] … I wish to comment on what occurred and what did not occur with respect to the evidence of Mr. Wahl at trial.  My notes of his evidence, particularly his evidence given under cross-examination, indicate that negative comments made by the various treators and Mary Richardson and Gerard Kerr were not put to him under cross-examination so that he would have an ability to deal with that evidence.  It is my view that the witness must be confronted with these opinions before the opinion can be properly dealt with (Browne v. Dunn, (1893) 6 R. 67 (H.L.)).  This is especially required in a case such as this where the defence submits that the plaintiff, in this case, is not motivated to get better and that the credibility of the plaintiff is at issue.
[217] The defence, in this case, called Dr. Bishop as a witness. …As indicated earlier Dr. Bishop was originally retained by the plaintiff but did not call Dr. Bishop at trial.  The defence made a point of filing Dr. Bishop’s reports and defence called her evidence as part of its case.  In the defence written submissions, the defence maintains that “her evidence makes it clear that she is of the opinion that the plaintiff is intentionally faking symptoms”….

[219]     It is important to note the first lines of the evaluation of effort where Dr. Bishop said, and I repeat:

. . . Although effort testing of itself cannot determine motivation as submaximal effort may be multifactorial in origin (e.g. fear of pain, anxiety with regard to performance, perception of dysfunction, need to demonstrate distress, etc) . . .

That finding cannot be relied upon, in my opinion, by the defence when the particulars of those conclusions were not put to the plaintiff when he was on the stand….

BC Court of Appeal Discusses Soft Tissue Injuries and Credibility

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, Uncategorized.

A decision was released today by the BC Court of Appeal addressing personal injury lawsuits and Judges duties to address credibility issues in their reasons for judgement.
In today’s case (Mariano v. Campbell) the Plaintiff was injured in a 2006 BC motor vehicle collision.  The Plaintiff apparently suffered from chronic soft tissue injuries as a result of this crash.  At trial her claim was successfully prosecuted and she was awarded close to $115,000 for her damages (You can click here to read my post summarizing the trial judgement).
During trial the Plaintiff’s credibility was put squarely at issue with the defense lawyer cross examining the Plaintiff with previous statements in which she stated that her injuries recovered shortly after the collision.  The trial judge dismissed these challenges and found that the Plaintiff was a ‘very credible‘ witness.  The Defendant appealed the judgement arguing that the trial judge “made palpable and overriding errors in assessing the plaintiff’s credibility‘.  The BC Court of Appeal agreed and found that the judge failed to “seize the substance of the critical issues” and ordered a new trial.
It is very unusual for a trial judge’s findings to be overturned on the issue of witness credibility.  In reaching this decision the BC High Court said the following about a judge’s duty to give reasons for judgement explaining how they assessed credibility:

38]         This appeal concerns assessments of witness credibility and findings of fact.  It is well-settled that an appellant court must exercise great restraint in reviewing such matters.  They are properly the province of the trial judge.  In the absence of palpable and overriding error, this Court must defer to the findings of fact of a trial judge (Housen v. Nikolaisen, 2002 SCC 23, [2002] 2 S.C.R. 235).

[39] The function of a trial judge in determining credibility, and the limited role of appellate courts in respect of credibility findings  were discussed by the Supreme Court of Canada in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3:

…what is required is that the reasons show that the judge has seized the substance of the issue…The degree of detail required in explaining findings on credibility may also, as discussed above, vary with the evidentiary record and the dynamic of the trial.  The factors supporting or detracting from credibility may be clear from the record.  In such cases, the trial judge’s reasons will not be found deficient simply because the trial judge failed to recite these factors.

[40] This case involved a soft tissue injury.  Because of the lack of purely objective evidence for such injuries, the evidence in support of the plaintiff’s case necessarily derived solely from her own reports of her injuries – either to the court, to her doctors, or (to a lesser extent) to her work colleagues.  In the circumstances, the plaintiff’s credibility was critical to the judge’s assessment of the case.  …

[41] In the case before us, then, a critical issue was whether the plaintiff’s evidence at trial about the course of her recovery was credible.  To make that determination, the judge had to examine the plaintiff’s various statements and the other evidence.

[42] It is my view that the reasons for judgment do not demonstrate that the judge “seized the substance of the critical issues”.  There are several indications that she did not do so.

[45] The trial judge’s treatment of the application for insurance and the applications to the colleges is also problematic. The documents, as previous statements by the plaintiff, were admissible for the truth of their contents.  Indeed, strong arguments can be advanced for accepting the documents as true, particularly given the evidence of Dr. Darby in cross-examination.  The judge, however, does not appear to have considered the possibility that the documents were truthful in stating that the plaintiff had fully recovered by March 2007.  Instead, her reasons suggest that she assumed that the statements to the insurer were false, and that their only value was in respect of an assessment of the plaintiff’s general credibility.  She dismissed them as being of little moment in that assessment.  She did not even mention the statements in the applications to the colleges…

[48] In my view, the reasons are problematic.  The fact that the plaintiff continued to work despite her symptoms does not, on the face of it, have any relationship to her veracity.  The issue in this case was not whether the plaintiff was exaggerating symptoms, or even whether she experienced pain at work at the time of trial.  Rather, it was whether her pain had been ongoing since the time of the accident.

[49] Similarly, the plaintiff’s emotional reaction to her neck problems had no bearing on the question of whether she was being completely forthright with the court in respect of the course that her pain took.

[50] I conclude that, looked at in their entire context, the reasons do not suggest that the trial judge “seized the substance of the critical issues”.  She did not deal with important contradictions in the evidence, and appears to have misapprehended or ignored parts of the cross-examinations of the plaintiff’s witnesses. This constitutes the kind of error that compels this Court to set aside her order.


ICBC Injury Claims and Lack of Continuous Medical Complaints

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases.


Individuals who suffer long-term chronic pain following a motor vehicle collision often attend frequently for treatment to their general practitioner.   These visits generate ‘clinical records‘ which generally document the patients complaints.
These clinical records are usually produced in the course of a subsequent personal injury lawsuit.  ICBC defence lawyers scrutinize these records and see if they can poke a hole in the Plaintiff’s case.  A common tactic is to review these records and see if the Plaintiff complains of the same symptoms at each and every visit.  If not, ICBC may argue that the Plaintiff recovered since there is a lack of continuous complaint.  So, does this mean an injured Plaintiff should make sure they discuss their accident related complaints each and every time they see their doctor?  The answer is no and reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing some of the reasons why this is not necessary.
In this week’s case (Van Den Hemel v. Kugathasan) the Plaintiff was injured in two motor vehicle collisions in 2006.  She was not at fault for either and the trial focused on the value of her ICBC claims.   During the course of trial ICBC’s lawyer argued that the Plaintiff was not credible and that her in Court testimony of chronic pain was contradicted by “temporal gaps” in the Plaintiff’s doctors clinical records.  Mr. Justice Stewart was quick to dismiss this attack and provided the following useful comments in response to the Defendant’s argument:

[9]             Another wing of the defendants’ attack on the plaintiff’s testimonial reliability – more particularly sincerity – focused on what the defendants say is the disparity between the plaintiff’s telling me, in effect, that her pain and suffering in the neck, shoulders and back has been present, persistent and continuous since the first motor vehicle accident in April 2006 and what the defendants describe as telling temporal gaps in what the plaintiff complained of when she was seen by her family doctor, Dr. Sun, over the years.

[10]         The plaintiff, in effect, told me that on any given occasion when she saw Dr. Sun and had her few minutes in the examining room that she went straight to only what was her most significant problem or complaint that day. I accept that. It makes sense in light of how our medical system functions today. Also I infer from the whole of Dr. Sun’s testimony that it was her practice to let the patient take the initiative and that she did not invite the patient to lodge a bill of complaints. Last, I note that – as will become clear later in these Reasons for Judgment – throughout the four years in question in the case at bar the plaintiff has been a woman beset with a myriad of problems for which she sought help or advice from caregivers, only some of which were neck, back and shoulder problems.

Mr. Justice Stewart went on to award the Plaintiff $75,000 in non-pecuniary damages for her accident related injuries.  This case is also worth reviewing in full for the Court’s lengthy discussion of Plaintiff “credibility” and “testimonial reliability” which is set out at paragraphs 5-17.

ICBC Injury Claims, Dueling Experts and the Danger of "Advocacy"

Written by admin on . Posted in Civil Procedure, Uncategorized. 121 Comments on ICBC Injury Claims, Dueling Experts and the Danger of "Advocacy"


A common theme when ICBC or other personal injury claims go to trial is that of dueling expert witnesses.  Often times the Plaintiff’s treating physicians provide an opinion to the Court that is contradicted by experts hired by defendants or insurance companies.  In deciding how much the claim is worth a Court must navigate through these competing opinions and decide who to believe.
Treating doctors, due in part to their long term relationship with their patients, sometimes provide their opinion in an argumentative way.  While well intentioned such opinions can do more harm than good.  The reason being is that the Rules of Court require expert witnesses to be neutral when presenting their opinion to the Court.  When experts advocate for one side or another they risk having their opinion discounted or even being excluded from evidence altogether.  The potential harm caused by expert advocacy was demonstrated in reasons for judgement released today by the BC Supreme Court, Vernon Registry.
In today’s case (Gendron v. Moffat) the Plaintiff was involved in a motor vehicle collision in 2008.  Fault for the crash was admitted by the opposing motorist focusing the trial on the value of the Plaintiff’s ICBC claim.  The Plaintiff sustained various injuries.  The Court heard different opinions as to the extent of these from the Plaintiff’s treating doctor and from the expert hired by ICBC.
The Plaintiff’s GP provided the opinion that the Plaintiff suffered from chronic injuries as a result of the Crash.  The doctor hired by ICBC disagreed and gave evidence that the accident related injuries largely ran their course and the Plaintiff’s symptoms were better explained by unrelated arthritis.  Ultimately Mr. Justice Cole preferred the evidence of ICBC’s doctor.  In coming to this conclusion the Court found that the Plaintiff’s doctor acted as an advocate and excluded portions of her evidence and discounted other parts.  Mr. Justice Cole provided the following useful comments:

[15] The doctor summarized her condition as follows:

Ms. Gendron sustained grade 2 strains to her cervical, thoracic and lumbar spines and a grade 2 strain to her right shoulder when she was T-boned in an intersection by a vehicle that had run through a red light. The impact imparted both forward and rotational acceleration forces through Ms. Gendron, and the subsequent symptom pattern and chronology of injury were consistent with the mechanism and severity of injury. Ms. Gendron has consistently demonstrated a high level of motivation to recover from her injuries, and has remained at work since her MVA , albeit in a reduced capacity. [Emphasis added.]

[16] The last two sentences of that summary I had removed, as in my view, the first sentence dealing with the impact of the accident and acceleration forces were not within the expertise of the doctor and the comment about her high level of motivation demonstrated that the doctor was acting more as an advocate than as an independent professional.

[17] The doctor was also critical of Dr. T. O’Farell, an orthopaedic surgeon who filed a report and gave evidence at trial. He was of the view that Dr. O’Farell’s report was “below the currently accepted standard for a specialist’s medical legal report.”  Again, that sentence was removed on the basis that the family doctor was more of an advocate than an independent professional and lacked the expertise to make such a statement…

[22] I am of the view that the plaintiff’s family physician, while a highly qualified doctor, is more of an advocate than an independent medical specialist and that it is almost impossible to be objective and an advocate at the same time. I therefore prefer the evidence of Dr. O’Farell that her neck pain is due to arthritis in her spine…

[27] In conclusion, I find that the injuries sustained by the plaintiff in the motor vehicle accident for which the defendant is liable, have substantially resolved.

While the doctor’s advocacy was not the sole reason for the Plaintiff’s lack of success at trial (The Court also found that the Plaintiff was not a credible witness) it goes to show that an overzealous treating physician can do more harm than good when providing an opinion to the Court.  It is important for treating doctors to give their evidence in a fair and balanced manner to maximize the chance of having their opinions accepted at trial.

More on ICBC Claims, Fault and Credibility

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized.


After a collision occurs it is not uncommon for the parties involved to disagree as to how the crash happened and who is at fault.  If there are no independent witnesses to a crash it can be difficult to decide which version is more believable.  When these cases go to trial it is vital to give evidence in a consistent, reliable and credible way otherwise the Court may discount what you have to say.  Reasons for judgement were released today by the BC Supreme Court, Cranbrook Registry, dealing with the topic of credibility.
In today’s case (Tierney v. GMAC Leaseco Corporation) the Plaintiff was injured in a motorcycle collision in 2005 in Kimberley, BC.  The Plaintiff lost control of his motorcycle and struck a building located on the opposite side of the road from his proper lane of travel.  He claimed that the Defendant was at fault for the crash because the Defendant (who was driving a vehicle in the opposite direction of travel) “cut into the corner on his side of the road forcing him to take evasive action by turning sharply.”
The Defendant disagreed arguing that she never came into the Plaintiff’s lane of travel, rather the Plaintiff simply lost control and was responsible for his own injuries.  There were no independent witnesses who could satisfactorily comment on how the crash happened leaving the Court to pick between the Plaintiff’s and Defendant’s evidence.  Ultimately Mr. Justice McEwan preferred the Defendant’s evidence and dismissed the lawsuit.   The Plaintiff’s evidence was at times “uncertain“, “conflicting” and “contradictory“.  These were some of the reasons which caused the Court to prefer the Defendant’s version of events.  In dismissing the lawsuit the Court held as follows:

[48]        The absence of physical evidence, and the unreliability of the various witnesses, including irreconcilable contradictions in the evidence, leaves the court to weigh what it has. This is not a case where both parties are implicated and it is not possible to discern the degree to which each is responsible, leading to an equal split in liability. For the plaintiff to succeed, the court must accept his evidence that, first, he intended to turn right at the curve and second, that the defendant was in his lane at that point. His own evidence and the surrounding evidence and circumstances suggest it is unlikely that his intention at the time was to go up to the highway.

[49]        The defendant on the other hand, gives a straightforward story of proceeding from the highway to the curve on Jennings Avenue, having made a recent right turn. She had had little opportunity to accelerate as she approached the curve. She was not preoccupied or distracted. Her evidence is unreliable in the aftermath of the realization that her vehicle was in danger of colliding with the plaintiff’s motorcycle, but not in respect to the details leading up to the event..

[50]        I do not think it is possible to say what happened with complete confidence, although I think the defendant’s version of events more likely. What that means for the plaintiff is that he has failed to carry the burden of proof that, on a balance of probabilities, the defendant’s negligence was the cause of the accident. This means, accordingly, that the plaintiff’s action is dismissed.

While there are no novel legal principles arising out of this decision, this case is worth reviewing in full for anyone involved in an ICBC case where credibility will play a crucial role to see the types of facts a Court can take into account when weighing two different versions to a motor vehicle collision.  For more on this topic you can click here to read my archived posts discussing credibility in ICBC claims.

More on ICBC Injury Claims and Plaintiff Credibility

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, Uncategorized.

As I’ve previously written, Plaintiff credibility plays an important role in most personal injury lawsuits.  This is particularly true in soft tissue injury cases.  Reasons for judgement were released today by the BC Supreme Court highlighting the impact that an adverse finding of credibility can have on a claim.
In today’s case (Sarowa v. Gill) the Plaintiff was injured in a 2006 motor vehicle collision in the lower mainland.  The defendant lost control of his vehicle and entered the Plaintiff’s lane of travel causing an impact which resulted in “significant damage” to the Plaintiff’s vehicle.  Fault was admitted focusing the trial on the value of the Plaintiff’s personal injury claim.
The Plaintiff gave evidence that that she suffered various soft tissue injuries which continued to bother her by the time of trial.  This was supported by the evidence of a physiatrist.  However, the Physiatrists evidence was not accepted by the Court because of  “deficiencies, omissions, and factual errors in (the doctor’s) report“.
Instead the Court preferred the evidence of Dr. Boyle, an orthopaedic surgeon ICBC arranged for the Plaintiff to see.  Dr. Boyle’s evidence included the following damaging observations:
Dr. Boyle’s opinion was that she had suffered a myofascial strain of the cervical and lumbar muscles as a result of the accident, but that the injury was mild.  He observed Ms. Sarowa to display exaggerated “pain behaviour” throughout the interview and examination.  He noted that she moaned, groaned and grimaced.  He said that patients who are in pain generally avoid a lot of movement in order to avoid discomfort, but Ms. Sarowa was restless.  When she was specifically asked to demonstrate range of motion it appeared quite limited, but she demonstrated a much freer range of motion spontaneously during the interview and other parts of his assessment.  He said that she could freely straight-leg raise from a sitting position, but couldn’t bend forward when standing ? an inconsistent presentation from an anatomical point of view.
The Court went onto to award little in the way of damages and in doing so made the following findings about the Plaintiff’s credibility:

[68]         Ms. Sarowa testified that she has not fully recovered from her accident injuries and continues to have neck and back discomfort, and frequent headaches.  As is usually the case, much of the plaintiff’s case rests on the extent to which the plaintiff is found to be a credible witness.  In this case, Ms. Sarowa was a less than satisfactory witness.  She was frequently evasive and non-responsive.  She was unable, or declined, to explain why she had claimed to be separated from her husband on December 31, 2007 when filing her 2007 tax return; but claimed at trial that she and her husband were back together at that time.

[69]         If she was being truthful at trial about the severity and duration of her accident injuries, than I would have to conclude that she omitted relevant information about her health when she applied for the job at Tim Horton’s in April 2007, and was deliberately untruthful when she applied for work at Brinks in September 2008.  I think it more likely that she was exaggerating the severity and duration of her injuries when testifying here at trial; as the evidence of her employers at Tim Horton’s and Brinks indicates she did not, in fact, demonstrate any difficulty with the physical performance of her job duties.

For those interested in this topic, this case is worth reviewing in full to get a sense of some of the factors courts look to when weighing a Plaintiff’s credibility in a soft tissue injury prosecution.

More on ICBC Soft Tissue Injury Claims and Plaintiff Credibility

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.


As I’ve previously posted, when Plaintiff’s sue for damages from soft tissue injuries sustained in so-called “Low Velocity Impacts” their credibility often plays a crucial role at trial.  The simple reason for this is that without objectively verified injuries a Court must make a favourable finding to accept the Plaintiff’s evidence that they experienced pain following the collision.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing the relationship between soft tissue injuries and plaintiff credibility.
In today’s case (Chandra v. Chen) the Plaintiff was injured in a 2007 BC motor vehicle collision.   The claim was defended with the argument that “the Plaintiff did not suffer an injury in the accident which was so slight that the other driver involved  in the accident could not even recall an impact to the front of his vehicle“.
This defence was rejected with the Court finding that the Plaintiff did indeed sustain “some minor injuries…which have merged into a continuum with stresses that have arisen at work“.  Mr. Justice McEwan went on to award the Plaintiff $20,000 for her non-pecuniary damages.  Prior to doing so the Court made the following useful comments about the significance of Plaintiff credibility in soft tissue injury cases and the relationship of the collision to her injuries:

[21]         It is often difficult to assess injuries where the mechanism of injury is not obvious – as is often the case in low damage accidents – and there is little other than the plaintiff’s own evidence to support a claim of ongoing pain. Because “credibility” is crucial, much is often made of inconsistencies in medical records that ostensibly record the impressions of physicians of the plaintiff’s remarks under circumstances that are themselves difficult to assess. The court is often left with making what it can of the impression given by the plaintiff in the witness box.

[22]         The plaintiff did not appear to be exaggerating. She gave her evidence in a straightforward manner. I accept that she suffered some pain associated with the accident and I accept that she is sincere in her effort to recall the pain she has suffered since that time. To the extent that she has been unspecific, and at times somewhat inconsistent, I do not think she has been motivated to mislead. I think her attempt to recall all of the pain she attributes to the accident somewhat at odds with her actual experience, which appears to have been of some aches and pains that would come and go over time. I also think that the stresses of a physical occupation have at times been assigned to the accident when they have actually arisen independently.