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 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,  2 S.C.R. 235).
 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,  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.
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. …
 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.
 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.
 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…
 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.
 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.
 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.
One set of facts personal injury lawyers frequently encounter are Plaintiffs who sustain injuries in motor vehicle accidents and continue to have chronic pain well beyond the time that the objective injuries have healed.
Pain is an inherently subjective condition and it is well accepted in peer-reviewed medical literature that pain can be present without ongoing objective physical injury. So how do courts deal with such claims? Without getting into the many nuances of trial outcomes a general theme in these types of cases is credibility. If a court accepts that a Plaintiff’s claims are credible then these claims are generally accepted. Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such a claim.
In today’s case (Sylte v. Rodriguez) the Plaintiff was involved in a 2005 motor vehicle collision in Port Coquitlam, BC. The Defendant failed to yield the right of way to the Plaintiff when he made a left hand turn in front of her. The issue of fault was admitted leaving the Court to deal with the value of the Plaintiff’s injury claim.
Mr. Justice Sewell awarded the Plaintiff just over $114,000 in total damages for her injuries and losses. The award included $45,000 for non-pecuniary damages. In arriving at this figure Mr. Justice Sewell discussed the subjective but real nature of the Plaintiff’s ongoing lower back pain due to soft tissue injuries. The highlights of the Court’s discussion were as follows:
 Ms. Sylte continues to suffer from left side back pain around her sacroiliac joint area. In Dr. Shu’s opinion this pain is caused by the initial car accident of September 15, 2005, but is definitely aggravated by the second accident. Dr. Shu does not expect a complete recovery as the pain has been on-going since 2005. He thinks that Ms. Sylte will experience on-going back pain for the foreseeable future.
 I also heard evidence and was provided with medical reports from Dr. Stone and Dr. Duncan McPherson. I do not think it is necessary to refer to their evidence in any detail. In this case, the consensus of medical opinion is that Ms. Sylte is suffering from low back pain in the left sacroiliac area. The doctors also all agree that there is no objective evidence of underlying injury causing this pain. They are all of the view that as the pain has persisted since June 2005 it will in all likelihood continue to persist for the foreseeable future.
 Dr. McPherson’s initial opinion was that there was no objective evidence of disability. However in cross examination at trial he did agree that he thought Ms. Sylte still had back pain as of the date of his examination in 2006. I did not take him to be disagreeing with Dr. Shu’s opinion that Ms. Sylte will probably continue to suffer from ongoing back pain for the foreseeable future. However, I do not think that Dr. Shu considered that Ms. Sylte suffers from any significant disability as a result of her injuries.
 The conclusion I have reached is that any restriction on Ms. Sylte’s activities is caused by pain rather than physical limitation. The pain is however very real to Ms Sylte and the functional effect of that pain is that Ms. Sylte no longer feels able to do all the things she did before the accident.
 Based on the evidence before me I conclude that Ms. Sylte suffered a soft-tissue injury to her lower back in the motor vehicle accident which continues to cause her chronic pain in her lower back area. I also conclude that she developed depressive symptoms which she would not have developed had the accident not occurred…
 Ms. Sylte is 51 years old. She testified that prior to the first motor vehicle accident she was an active, energetic individual. She enjoyed playing mixed softball, golf and skiing. She was employed as a nurse’s aide at the Royal Columbian Hospital in New Westminster. She was a single mother whose adult son, Josh, lived with her.
 Ms. Sylte said that as a result of the pain which she is now experiencing she is no longer able to play softball and can golf only very occasionally. She simply finds these activities too painful to pursue. In addition she no longer skis. She indicated that Josh is now required to do many of the more physically demanding tasks around the house. She also indicated that she finds it difficult to drive long distances and that her general quality of life has deteriorated significantly as a result of her pain. She indicated that this pain is about 4 out of 10, with 10 being the worst pain imaginable.
 Josh gave evidence at the trial. He generally corroborated the drop in Ms. Sylte’s activity level since the motor vehicle accident. He also indicated that his mother had become much less social after the accident. Josh, who is now 31, does much of the heavy work around the house.
 Ms. Sylte has suffered a significant impact on her social and recreational life as a result of the injuries she suffered in the accident. The evidence before me is that these symptoms will be permanent. I note that Ms. Sylte is no longer able to play softball, participate in golf in any meaningful way or pursue skiing. She is in more or less constant discomfort from the injuries she has suffered. As I have found, she is genuinely experiencing the pain which, I have no doubt, has some psychological component.
 I have concluded that there should be a substantial award for non-pecuniary damages in this case. I was referred to in a number of cases which seem to establish a range of approximately $35,000 to $125,000 for non-pecuniary damages for plaintiffs who suffer permanent pain symptoms without significant physical disability. In my view, an appropriate amount for non-pecuniary damages in this case is $45,000.
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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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