Tag: Siddall v. Bencherif

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.

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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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