Tag: Pacheco v. Antunovich

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.

"Exaggerated" Injury Claim Dismissed by BC Supreme Court

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.
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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:
[10]         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.
[11]         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.
[12]         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.
[13]         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…
[19]         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.

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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.

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