Tag: exacerbation of pre-existing injuries

Plaintiff Facebook Photos Help Undermine Personal Injury Claim

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, largely rejecting claimed damages in a personal injury lawsuit due in part to concerns with the Plaintiff’s credibility and further due to Facebook photos entered as evidence at trial.
In the recent case (Brennan v. Colinders) the Plaintiff was involved in a 2012 collision.  The Defendants admitted fault.  The Plaintiff alleged the collision caused chronic problems which continued up to the time of trial.  The Court rejected this finding the collision related consequences had resolved.  In awarding $20,000 in non-pecuniary damages Madam Justice Baker provided the following critical comments regarding the Plaintiff’s credibility along with noting the impact of Facebook photos:
[11]        I found, in general, that Mr. Brennan is not a credible witness.  He proved to be a very poor historian.  While some of the problems with his testimony could perhaps be considered the result of poor memory or carelessness, there were also instances of what I consider to be a failure to respond honestly and truthfully to questions asked; and a tendency, often demonstrated, to shade or colour his testimony in a way he perceived to be helpful to his case.  Some of his testimony was contradicted not only by the testimony of defence witnesses, but also by other witnesses called on behalf of the plaintiff.  While testifying, Mr. Brennan frequently contradicted himself.  He gave different versions of the same events at different times….

[103]     Since March 2012, Mr. Brennan has acquired a new hobby, which, judging by the numerous photographs he has posted on his Facebook page, provides him with considerable satisfaction.  Mr. Brennan testified that he obtained a firearms permit and a friend purchased a handgun for him.  He has posted numerous photographs of himself in various poses with this weapon.

[104]     Mr. Brennan testified he had attempted camping on one occasion but after one night found sleeping on the ground too uncomfortable.  Again, the timing of this attempt was unclear.

[105]     I am prepared to accept that for a short time after the March 2012 accident, Mr. Brennan would have found his usual recreational and social activities less enjoyable than before the accident injuries exacerbated his chronic condition, but that within six months post-accident he was not prevented from participating in the activities to the same extent he had prior to the accident.

[106]     Counsel provided the Court with various authorities:  George v. Doe, 2015 BCSC 442; Dhaliwal v. Pillay, 2015 BCSC 509; Graydon v. Harris, 2013 BCSC 182; Kahle v. Ritter, 2002 BCSC 199; Lamong v. Stead, 2010 BCSC 432; Zvatora v. Liberman, 2000 BCSC 306, Friesen v. Fiddler, 2003 BCSC 1955; Dymond v. Wilson, 2001 BCSC 244;Boyd v. Shortreed, 2009 BCSC 1468; and Ryan v. Kakowich, 2011 BCSC 835.  None of these authorities deals precisely with the situation of a plaintiff who was already largely incapacitated prior to an accident involving a minor exacerbation of pre-existing debilitating symptoms.  I find the range of awards in the cases cited by defendants’ counsel to more closely reflect the facts in this case.

[107]     I award the sum of $20,000 for non-pecuniary damages.

$20,000 Non-Pecuniary Damages for "Minor Exacerbation of Pre-Existing Symptoms"

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for the aggravation of pre-existing injuries caused by a so-called Low Velocity Impact.
In today’s case (Pearlman v. Phelps Leasing Ltd.) the Plaintiff, a 77 year old retired lawyer, was involved in a 2007 collision.  He had pre-existing injuries from a 2004 collision and the Court found that these were exacerbated for a short while following the 2007 crash.  The Court expressed serious concern about the Plaintiff’s credibility with the following observation:
[3] The plaintiff’s credibility from the onset of the trial before me through to its conclusion dissipated like aspirin in a glass of water until all that remained was a murky, cloud-like substance. Amongst his many inconsistencies and exaggerations, the most shocking was that the testimony of his injuries in the trial before me was nearly identical to the testimony he gave at the 2008 trial, in which he blamed the 2004 Accident for all the problems he was experiencing in 2008.
Despite this the Court found that the Plaintiff did suffer injury in the 2007 crash.  In assessing non-pecuniary damages at $20,000 Madam Justice Kloegman provided the following comments:
[44] After having reviewed all of the exhibited medical records and reports, and after considering all of the viva voce testimony, it seems fair to conclude, on a balance of probabilities, that it is more likely than not that the plaintiff experienced from the 2007 Accident an exacerbation of his pre-existing symptoms. However, it appears to have been minor and not long in duration. The plaintiff developed no new symptoms. He was back doing physical labour within a few days, and his complaints from that time to the present would likely have continued, regardless of the 2007 Accident. His pre-existing condition was well described by Dr. Baird and Dr. Keyes and there was no reliable, positive evidence to indicate that he developed some further injury of a permanent nature as a result of the 2007 Accident. It is telling, indeed, that the plaintiff’s statement of claim with respect to the 2004 Accident is almost identical to his statement of claim respecting the 2007 Accident…
[47] The case law indicates that a reasonable award of non-pecuniary damages for the plaintiff’s aggravated injury is in the range of $15,000 to $20,000 (Hough v. Wyatt, 2011 BCSC 910; and Dempsey v. Oh, 2011 BCSC 216). It is interesting to note that in both these other cases, the plaintiff was found to be lacking credibility and the Court was obliged to rely on the medical evidence to determine the cause of the plaintiff’s claims of injury. I find myself in a similar position, and on the evidence before me, I award the plaintiff $20,000 in total damages arising from the 2007 Accident.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer