In Zajaczkowski v. Grauer, the Plaintiff was injured in a motor vehicle collision, and consequently brought an ICBC claim for several types of damages, including pain and suffering, income loss, and diminished earning capacity. At trial, the Court did not find the Plaintiff to be credible, and did not award any amount for income loss and diminished earning capacity, ruling that the Plaintiff failed to establish any factual foundations for such claims. The Plaintiff appealed.

 

Counsel for the Plaintiff argued that the trial judge’s adverse ruling of credibility was founded upon the misapprehension of evidence with respect to the Plaintiff’s education, post-accident earnings, and post-accident work activities.

 

ICBC’S lawyer argued that the trial judge’s view of the evidence with respect to the Plaintiff’s education had no bearing on the trial judge’s general assessment of credibility, and that there was no misapprehension of the evidence concerning the Plaintiff’s post-accident income.

 

The main issue on appeal for the Court to decide was whether the assessment of the Plaintiff’s credibility was based upon a misapprehension of evidence.

 

The Court noted that the trial judge did in fact misapprehend the Plaintiff’s evidence respecting his education, however that this misapprehension did not undermine the trial judge’s overall assessment of the Plaintiff’s credibility. Further, the Court ruled that the trial judge did not misapprehend evidence in regards to the Plaintiff’s post-accident income or earning capacity.

 

The Court, in a 2-1 decision, dismissed the Plaintiff’s appeal, with the dissenting judge ruling that a new trial was warranted under the circumstances.

 

[22] With that said, I am of the opinion that a misapprehension of the evidence does not undermine the trial judge’s overall assessment of the appellant’s credibility. The appellant did give unclear and confusing evidence. He did not know with certainty when he left high school, whether he had completed only grade 8 or grade 9, whether he went back into grade 10, or what grade equivalency he obtained by the GED certification (in particular, whether he had high school equivalency). In my opinion, the evidence was not so inconsistent as to serve as a footing upon which the judge could conclude that the appellant was not a truthful witness …

 

[44] While the judge clearly accepted the thrust of this evidence, which was evidence of fatigue and pain, he also found that it afforded “an insufficient factual underpinning for any compensation for loss of earning capacity”. In my view, the inability of the trial judge to find a factual underpinning for the claim lay not in an error of law; the trial judge expressly noted, at para. 51, that “a plaintiff need only show a real and substantial possibility of a future event leading to an income loss, in accordance with Perren v. Lalari, 2010 BCCA 140”. The claim for loss of earning capacity failed because the judge found the appellant had not met the evidentiary burden described in Perren. He did not accept the appellant’s own evidence of his limitations. The witnesses provided some anecdotal evidence of occasions when the appellant was limited in his work but that did not establish the appellant was, overall, unable to work as much as he had worked before his injury …. I cannot say the trial judge erred in coming to the conclusion that the evidence did not support a claim under this head of damages. I would also dismiss the appeal founded upon this argument.

The credibility of witnesses, particularly of the Plaintiff in ICBC claims, can play a vital role in determining liability and amounts awarded by the Court or jury for injuries. ICBC’S lawyers will often launch attacks on the credibility of the Plaintiff with respect to pre-existing injuries, injuries arising from the accident, inconsistencies in their evidence, and the effect that the injuries have had on their lives. Sometimes they are successful, but more often are not. The credibility of a Plaintiff is also important in the context of the weight to be given to expert reports, which are sometimes based on the subjective reporting of the Plaintiff’s symptoms.

In Minhas v. Sartor, the Plaintiff was injured in a motor vehicle accident, and subsequently brought an ICBC claim, seeking many types of damages, including pain and suffering, income loss, and diminished earning capacity. Liability was admitted by ICBC’S lawyer. The Plaintiff alleged that he suffered a severe and permanent brain injury as a result of the accident, and would never be able to work ever again. At trial, the Justice did not believe that the Plaintiff was a credible witness, and did not believe that the Plaintiff suffered a brain injury. The Justice rejected the Plaintiff’s expert reports as well, as being based on false information provided by the Plaintiff. The Plaintiff was awarded only $70,000.00 for non-pecuniary damages, and appealed to the British Columbia Court of Appeal. The Court of Appeal upheld the trial Justice’s decision, ruling that the issues raised by the Plaintiff on appeal are highly dependent on the trial Justice’s credibility assessment, are not suitable for an appeal.

 

[24] There is no real challenge taken to any of the judge’s descriptions of the evidence, although there is explanation proffered. But it was up to the judge whether to accept the explanation, and it is not up to us. As this was a case highly dependent on credibility findings, it seems to me that if the claim of brain injury was to be won, it was to be won at trial. Without the finding of fact that Mr. Minhas had suffered a brain injury, it is simply premature to analyze the theories of causation.

 

[25] I see no basis upon which we may interfere with the judge’s conclusion that Mr. Minhas did not prove he had sustained a brain injury in, or caused by, the accident. I would dismiss the appeal.

The credibility of witnesses, particularly of the Plaintiff in ICBC claims, can play a vital role in determining liability and amounts awarded by the Court or jury for injuries. ICBC’S lawyers will often launch attacks on the credibility of the Plaintiff with respect to pre-existing injuries, injuries arising from the accident, inconsistencies in their evidence, and the effect that the injuries have had on their lives. Sometimes they are successful, but more often are not. The credibility of a Plaintiff is also important in the context of the weight to be given to expert reports, which are sometimes based on the subjective reporting of the Plaintiff’s symptoms.

 

In Pacheco v. Antunovich, the Plaintiff was a registered nurse who was involved in a rear end collision, and subsequently brought an ICBC claim for damages for pain and suffering, loss of income, diminished earning capacity, loss of housekeeping capacity, out of pocket expenses, and cost of future care. In total, the Plaintiff was claiming for more than $100,000 in damages. The Plaintiff also suffered from pre-existing conditions. The Court, however, dismissed the Plaintiff‘s claim in its’ entirety, stating that on a balance of probabilities that the Plaintiff failed to prove that she suffered any injury arising from the accident. The Plaintiff was also ordered to pay the Defendant‘s costs. The Court was critical of the Plaintiff‘s credibility:

 

[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.

[16] Counsel for the defence submits that if the plaintiff has not met the threshold of providing objective evidence of her injuries, then her claim must be dismissed. If she has met the threshold but the weight of the evidence is suspicious due to exaggeration, then the court is entitled to consider that in assessing damages.

[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.

In Levens v. Lehmann, the Plaintiff was injured when she was rear ended by another vehicle. She consequently brought an ICBC claim for damages for pain and suffering, out of pocket expenses, and the cost of future care. Liability was admitted by ICBC’S lawyer. The Plaintiff alleged neck and back pain, including a herniated disk. ICBC’S lawyer argued that the Plaintiff suffered from a pre-existing back injury, and that the motor vehicle accident in question merely aggravated such a condition. With respect to the Plaintiff‘s neck injuries, ICBC’S lawyer argued that they were unrelated to the motor vehicle accident in question. The Court dismissed ICBC’S lawyer’s argument that the Plaintiff failed to mitigate her damages by not exercising more, and awarded $48,000.00 in damages for pain and suffering, as well as $10,000.00 for future care. The Court also discussed the issue of credibility.

 

[78] The defence argues that Ms. Levens was not honest when she told Dr. Davidson (the statement was actually made to Dr. Burgoyne) that she had not experienced weakness and shoulder pain on the left side before.

[79] Ms. Levens cannot be expected to remember everything she told her doctors about her medical complaints and pain, nor ought it be expected that the doctors she consulted be expected to record everything she told them. There are bound to be inconsistencies between Ms. Levens’ testimony and those statements made by Ms. Levens to her various doctors as contained in their consultation reports and expert reports, which are based on clinical records. This situation is commented on in Edmondson v. Payer, 2011 BCSC 118, aff’d, 2012 BCCA 114 as follows:

[31] In Diack v. Bardsley (1983), 46 B.C.L.R. 240, 25 C.C.L.T. 159 (S.C.) [cited to B.C.L.R.], aff’d (1984), 31 C.C.L.T. 308 (C.A.), McEachern C.J.S.C., as he then was, referred to differences between the evidence of a party at trial and what was said by that party on examination for discovery, at 247:

… I wish to say that I place absolutely no reliance upon the minor variations between the defendant‘s discovery and his evidence. Lawyers tend to pounce upon these semantical differences but their usefulness is limited because witnesses seldom speak with much precision at discovery, and they are understandably surprised when they find lawyers placing so much stress on precise words spoken on previous occasions.

[32] That observation applies with even greater force to statements in clinical records, which are usually not, and are not intended to be, a verbatim record of everything that was said. They are usually a brief summary or paraphrase, reflecting the information that the doctor considered most pertinent to the medical advice or treatment being sought on that day. There is no record of the questions that elicited the recorded statements.

In Gulbrandsen v. Mohr, the Plaintiff was injured in a motor vehicle collision, and advanced an ICBC claim for several types of damages, including pain and suffering, loss of income, out of pocket expenses, diminished earning capacity, and the cost of future care. Prior to trial, ICBC’S lawyer had made a Formal Settlement Offer. Although the Plaintiff was successful at trial, the Plaintiff received an award substantially less than that of the Formal Settlement Offer. A big reason for this was that the Court made negative credibility findings against the Plaintiff. The Plaintiff‘s was also ordered to pay double costs to the Defendant, for failing to beat the Defendant‘s offer.

 

[6] The remaining possible outcome I have considered is to award the plaintiff costs to the date of the offer and to award the defendant double costs thereafter, as he proposes. The factor which might militate against doing so is the relative financial circumstances of the parties. The plaintiff is a woman of modest means. I know nothing of the remaining defendant, Mr. Mohr’s, means. The action was defended by counsel instructed by ICBC. The court may take into account the presence of insurance coverage when assessing the relative financial circumstances of the parties: Smith v. Tedford, 2010 BCCA 302 at para. 19. However, the presence of insurance coverage is not always a relevant factor. As the court observed in Hunter v. Anderson, 2010 BCSC 1591 at para. 22:

 

…it is in circumstances where a defendant‘s insurance coverage creates an unfair advantage leading to unnecessary costs through testing the plaintiff‘s case, where an insurer‘s financial circumstances supplant those of the litigant as a factor to consider in determining costs.

 

 

[7] I find that the presence of insurance coverage in the present case did not create an unfair advantage leading to unnecessary costs. It was the plaintiff who unreasonably rejected the defendant’s offer to settle. Therefore, I am unable to find a relevant significant disparity in the relative financial circumstances of the parties.

 

[8] Unless there is some compelling reason to the contrary, the defendant is entitled to double costs from the date of the offer. Not only is there no reason to the contrary, in my view there is a compelling reason to accept the defendant’s argument. In my reasons for judgment which awarded damages to the plaintiff, I nevertheless found the plaintiff was an unreliable witness. This was not simply a matter of a witness who was honestly mistaken. I concluded the plaintiff had attempted to persuade me of facts that she knew were not true. On the costs hearing the plaintiff complained about my conclusions regarding her credibility but the costs hearing was not an occasion to re-argue her case for damages.

 

In Warren v. Morgan, the Plaintiff was injured in two motor vehicle collisions, and consequently brought ICBC claims for damages for pain and suffering, loss of income, diminished earning capacity, special damages, and cost of future care. Liability was admitted for both accidents, however the Court ruled that one of the claims would be dismissed. With respect to the other accident, the Plaintiff alleged that she suffered from severe chronic pain, profound cognitive dysfunction, and psychological injury. ICBC’S lawyer questioned the severity of the Plaintiff‘s alleged injuries, given the minor nature of the accident. Although, the Court ruled that the Plaintiff was entitled to some damages, it was not nearly what the Plaintiff had sought. The Plaintiff‘s lack of credibility appears to have diminished the value of her claim, as evidenced by the Court’s comments.

[476]     These findings do not determine the issue of causation. The law is well-established that causation and the extent of an injury will be decided on the whole of the evidence: Hoy v. Harvey, 2012 BCSC 1076 at paras. 44 – 45; Christoffersen v. Howarth, 2013 BCSC 144 at paras. 56 – 57. Even if the accident was minor, Ms. Warren may have suffered serious physical and psychological injury.

 

[477]     At the same time, Ms. Warren has put forward an untruthful version of the accident to her treating health care professionals, as evident in their description of the incident. For instance, Dr. Boyle’s report notes that she crashed into the car ahead of her as a result of Mr. Berretta’s vehicle hitting her from behind. This misstatement cannot be explained by the passage of time; it is a misrepresentation that affects the reliability of the medical evidence admitted in this case for the purpose of determining causation and damages.

[591]     On the evidence, I find the plaintiff has convinced herself that the accident occurred in a certain way and that she experienced certain symptoms. She has presented this story to her treating doctors who have relied upon the accuracy of her reported symptoms. These doctors have found support for their diagnoses in other medical reports, that similarly rely upon the accuracy of plaintiff’s reported symptoms. This evidence superficially seems reliable, but its foundation is fictitious.

 

In Jawanda v. Samra, the Plaintiff was injured in a car accident over six years before the time of trial. The Plaintiff brought an ICBC claim for damages for pain and suffering, diminished earning capacity, and future care. Liability was not in dispute. The Plaintiff claimed she still suffered from the motor vehicle accident related injuries by the time of trial, whereas ICBC’S lawyer was of the belief that the Plaintiff’s injuries resolved within 6 to 12 months from the time of the accident. ICBC’S counsel urged the Court to consider the credibility of the Plaintiff, and the fact that her complaints of symptoms were primarily subjective in nature. Despite the Court noting some inconsistencies in the Plaintiff’s reporting, the Court nevertheless was satisfied that the Plaintiff was a credible witness, and awarded her $75,000 for pain and suffering. The Court also commented on general principles considered by the Court when assessing credibility.

 

[114]     The defence reminds me of the following comments by McEachern C.J.S.C. in Price v. Kostryba at para. 2, quoting Andrews v. Grand & Toy Alta. Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229:

 

In assessing damages for personal injury, the focus should be on the injuries of the innocent party. Fairness to the other party is achieved by insuring that the claims against him are legitimate and justifiable.

 

And at para. 6 McEachern C.J.S.C. went on to say:

 

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.

 

[115]     At the same time, the comments of N.H. Smith J. in Carvalho v. Angotti, 2007 BCSC 1760 (CanLII), 2007 BCSC 1760, are also helpful and relevant. He says at para. 15:

 

The attack on the plaintiff’s credibility is based, in part, on various contradictions and inconsistencies within her evidence at trial and between that evidence and her discovery evidence, documents she prepared for other purposes, or statements recorded in clinical records.  It is a rare case of this kind where such inconsistencies cannot be found. By the time a personal injury case gets to trial, the plaintiff typically will have provided information to a number of people – including doctors, adjusters and disability insurers – on a number of occasions over a period of years. This provides fertile ground for cross-examination precisely because very few people will have perfect and identical recollection on each of those occasions.

 

[117]     Given the totality of the evidence and even though there was inconsistent reporting from time to time, I accept the evidence of Ms. Jawanda. I am satisfied she was a credible witness who attempted to provide an accurate description of her symptoms to the various medical practitioners she saw over a considerable period of time. Given Ms. Jawanda’s language difficulties and the medical opinions confirming chronic pain and thoracic outlet syndrome symptoms can be variable, I have concluded her inconsistent reporting should not undermine her overall credibility.

 

In Erickson v. Sibble, the Plaintiff was injured as a bus passenger when the bus driver slammed hard on the brakes to avoid traveling through an intersection on a red light. The Plaintiff brought an ICBC claim for injuries, with the Court ruling that the bus driver was 75% responsible for her injuries, and the Plaintiff herself 25% responsible. The Court discussed the concept of credibility of witnesses in the context of ICBC injury claims. In the circumstances of this case, the Court ruled that the Plaintiff’s credibility was not successfully impeached by ICBC’S lawyer.

 

[4]           The defendants waged an attack on Ms. Erickson’s credibility on all fronts.  To that end, their approach in cross-examination was to attempt to reveal Ms. Erickson’s evidence as variously implausible, inconsistent, an affront to common sense and, at its core, wholly unreliable.  Expanding on that theme in final argument, the defendants asserted that Ms. Erickson exaggerated and coloured her testimony in a self-interested manner.  They urged the Court to approach her evidence with extreme scepticism and caution, and to discount it unless corroborated by reliable, independent testimony.  I will not stop here to detail the alleged deficiencies, preferring instead to address them throughout my reasons in the context in which they arise.

 

[5]           The assessment of Ms. Erickson’s credibility and the reliability of her evidence is pivotal in determining her pre-Accident physical health, the causation of her injuries, their nature and severity, and her damages.  It is also material to the weight to be given to the medical opinions to the extent that they are fastened upon Ms. Erickson’s subjective reporting, perception of her symptoms, and recitation of her pre-Accident condition.

 

[6]           Determining the credibility and reliability of a witness is fundamental to the judicial task, and yet is notoriously difficult.  It has been recognized that the determination is more an art than a science, and is not a purely intellectual exercise.  The factors involved can be challenging to verbalize:  R. v. R.E.M., 2008 SCC 51 (CanLII), 2008 SCC 51 at para. 49.

 

[8]           It is accepted as a general rule that judicial assessment of credibility starts on the footing that the witness is telling the truth:  see Halteren v. Wilhelm, 2000 BCCA 2 (CanLII), 2000 BCCA 2.  However, truthfulness and reliability are not always one and the same.  A witness may sincerely believe that she is telling the truth, but lack the sufficient memory, perspective, cognitive ability or narrative capacity to give reliable testimony.  Alternatively, a witness “may unconsciously indulge in the human tendency to reconstruct and distort history in a manner that favours the desired outcome”:  Hardychuk v. Johnstone, 2012 BCSC 1359 (CanLII), 2012 BCSC 1359 at para. 10.  And there is always the possibility that a witness may simply choose to lie for whatever reason.

 

[9]           While testifying, Ms. Erickson sometimes struggled to maintain her train of thought and remain on topic.  From time to time, the content of her answers seemed scattered and excessively punctuated with collateral thoughts that occasionally made it difficult to track the coherency of her testimony.  Still at other times, she had poor or only partial recall of events, a shortcoming that was compounded by her tendency to skip in and out of chronological order.  On occasion she would also embellish her answers to include details that were plainly extraneous.

 

[12]        I find that Ms. Erickson’s credibility was not successfully impeached, with the notable exception of her testimony about her alleged past loss of opportunity and loss of future capacity.  The concerns I have about her credibility that arose in relation to this key subject area have prompted me to approach all of her evidence with extra caution.  That said, my concerns do not run so deep as to require independent corroborative evidence in order to accept her testimony on all matters, or otherwise compel the conclusion that she is a discreditable witness at large.

In Hardychuk v. Johnstone, the Plaintiff was injured in a car accident, and brought an ICBC claim for several heads of damages, including pain and suffering, past loss of earning capacity, diminished earning capacity, and cost of future care. As the Plaintiff’s case rested primarily on reports of subjective symptoms, with very little objective evidence, credibility became a central issue. Although the Court approached the Plaintiff’s credibility with caution, this did not play a role in the Court’s decision to award $60,000.00 for pain and suffering. The Court engaged in a useful discussion of the factors for a Court to consider when assessing a witness’ credibility.

 

[8]           The factors to be considered when assessing credibility were summarized by Dillon J. in Bradshaw v. Stenner, 2010 BCSC 1398 (CanLII), 2010 BCSC 1398, as follows:

 

186      Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) 1919 CanLII 11 (SCC), (1919), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness’ evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross-examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally (Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont. H.C.); Faryna v. Chorny, [1952] 2 D.L.R. 152 (B.C.C.A.) [Faryna]; R. v. S.(R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 at para.128 (S.C.C.)). Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time (Faryna at para. 356).

 

[9]           Where, as here, a plaintiff’s case relies on subjective symptoms with little or no objective evidence of continuing injury the court must be exceedingly careful in examining the evidence and assessing credibility:  Price v. Kostryba 1982 CanLII 36 (BC SC), (1982), 70 B.C.L.R. 397.  If deliberate falsehood is established it may be difficult to disentangle truth from deceit and some truthful aspects of the plaintiff’s testimony may lose their force, particularly in the absence of corroboration.  That being said, when a plaintiff is accused of deliberate deceit more than speculation or innuendo is required.  A charge of deliberate deceit under oath is a serious attack on an individual’s integrity which should not be lightly treated or lightly made:  Halteren v. Wilhelm, 2000 BCCA 2 (CanLII), 2000 BCCA 2; Edmondson v. Payer, 2011 BCSC 118 (CanLII), 2011 BCSC 118; Vasiliopoulos v. Dosangh,2008 BCCA 399 (CanLII), 2008 BCCA 399.

 

[10]        The typical starting point in a credibility assessment is to presume truthfulness:  Halteren.  Truthfulness and reliability are not, however, necessarily the same.  A witness may sincerely attempt to be truthful but lack the perceptive, recall or narrative capacity to provide reliable testimony.  Alternatively, he or she may unconsciously indulge in the human tendency to reconstruct and distort history in a manner that favours a desired outcome.  There is, of course, also the possibility that a witness may choose, consciously and deliberately, to lie out of perceived self-interest or for some other reason.  Accordingly, when a witness’s evidence is demonstrably inaccurate the challenge from an assessment perspective is to identify the likely reason for the inaccuracy in a cautious, balanced and contextually sensitive way.

 

[11]        The presumption of truthfulness will be displaced by convincing evidence of deliberate falsehood.  Such evidence may take many forms.  There is no hard and fast rule as to how falsehood on a plaintiff’s part may be demonstrated in a personal injury action.  In my view, however, in most such cases fairness will require that a plaintiff be given an opportunity to respond directly to an assertion of deliberate untruthfulness before his or her credibility, as distinct from reliability, is successfully impeached:  R. v. Lyttle, 2004 SCC 5 (CanLII), 2004 SCC 5; Browne v. Dunn (1893), 6 R. 67 (U.K.H.L.).

 

[17]        Despite the weaknesses in her testimony and presentation, however, I am not persuaded that Ms. Hardychuk was deliberately untruthful.  This proposition was not put to her directly, nor do I think it justified on the evidence.  On the contrary, at least for the most part I conclude Ms. Hardychuk has convinced herself that her physical, mental and emotional condition are in the dire state she described and attempted to demonstrate throughout the course of her testimony.  Although I do not accept her description as entirely accurate, I find that she has exaggerated in a largely unconscious or, at worst, semi-conscious way.  She has also retrospectively over-attributed some of her difficulties to the effects of the accident.

 

[18]        All things considered, I approach Ms. Hardychuk’s evidence with considerable caution.  I do not, however, necessarily discount it, even where uncorroborated, in making the factual findings set out below.