Credibility in Personal Injury – Part 1

By February 26, 2016Articles

Article by Walter W. Kubitz, Q.C., a personal injury lawyer in Calgary, Alberta.

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In the recent decision of Bumstead v Dufresne, 2015 ABQB 787, the Plaintiff claimed to be suffering from chronic pain resulting in severe disability that prevented him from working since a September 9, 2005 accident, except for three failed return-to-work attempts.  The court cut off his damages as of the date of some damning video surveillance.

Justice Horner referred to the decision of Price v Kostryva 1982, CanLII 36 (BC SC) where the chief justice of British Columbia stated:

I am not stating any new principle when I say 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.

An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence – which could be just his own evidence if the surrounding circumstances are consistent – that his complaints of pain are true reflections of a continuing injury.

In the Bumstead case, Justice Horner noted that there was no evidence of any organic cause for the Plaintiff’s ongoing complaints (paragraph 337).  The whole case turned on the March 7, 2008 video surveillance (paragraph 67):

 [67]           The Defendant particularly emphasized surveillance footage from March 7, 2008. This footage showed the Plaintiff in an alley, performing mechanical work on his vehicle for approximately three hours. It displays the Plaintiff maneuvering around his truck and he is seen in sustained positions of standing, kneeling, stooping, and crouching. Multiple times, the Plaintiff is seen bending at the waist, twisting his torso, squatting, and working with heavy objects. In particular, the footage shows the Plaintiff using a manual jack to lift up his truck, remove and mount tires on his truck, and work within the wheel/brake assembly for a sustained period of time. The Plaintiff does not appear to be in pain, working slowly, or taking extended breaks. Rather, his movements appear fluid and he is observed sustaining static positions over extended periods of time.

Justice Kenney commented (paragraph 303):

 [303]      In my view, a lay person watching the March 7, 2008 video without explanation or context would not think that the man performing the tasks shown had been off any kind of work for over 30 months due to disabling pain. The Plaintiff simply did not present as having any movement difficulty or attendant pain at all. It is difficult to accept that this was a man simply having a “good day”. It is particularly troublesome when viewed in the context of his reporting of pain and greatly restricted lifestyle to the three medical experts in and around this date. The fact that the Plaintiff did not report to either Dr. Hurlbert or Dr. Atkinson that he had just done maintenance on his truck and in fact reported that he could not do so, leads to the inescapable inference that the Plaintiff presented himself and his injury in the light best suited to result in gain for himself.

Justice Kenney concluded (paragraph 314 – 315):

 [314]      Upon reviewing these facts and the totality of the evidence at trial, I conclude that the Plaintiff is not credible. I cannot conclude with certainty that the Plaintiff has accurately and honestly presented his treatment providers with a reliable description of his symptoms and condition. As a consequence, his ability to prove on a balance of probabilities that he suffers from disabling chronic pain such that he has not been able to work and cannot in the future work in any capacity is significantly undermined.

[315]      Given my finding on the Plaintiff’s credibility, that his injuries were largely self-reported and of a soft tissue nature, his claim cannot be established solely on the basis of his evidence. I need then to consider the objective findings of his medical service providers to determine what injury the Plaintiff suffered, if any, in the accident.

[318]      Based on what I saw on the video surveillance, I find that the Plaintiff could have found employment commensurate with his prior seniority and income by March 2008.

[319]      However, the March 2008 video makes it clear to me that the Plaintiff had, by that time, significantly greater capacity than he reported to the medical professionals.

Justice Kenny concluded (paragraph 392):

[392]      In summary, I find that the Plaintiff has failed to establish on a balance of probabilities that he was fully disabled and unable to work by reason of the accident beyond the date of the surveillance video, being March 7, 2008. Therefore, the Defendant is liable for the Plaintiff’s damages only up to that date.

In conclusion, as injuries such as whiplash, chronic pain, and brain injuries have no “objective” tests available to prove their existance, the credibility of the plaintiff will win or lose the case for them.

Article by Walter W. Kubitz, Q.C., a personal injury lawyer in Calgary, Alberta.