Michael Ford (post until Oct. 31/19)
Personal Injury

Plaintiff credibility is key in personal injury trials

The plaintiff’s credibility is pivotal when it comes to motor vehicle accident trials, says Oakville personal injury lawyer Meghan Walker

In a recent Alberta case, the province’s Court of Appeal upheld a trial judgment rejecting a woman’s claim that her ongoing chronic pain was caused by a motor vehicle accident, largely as a result of the finding that she lacked credibility. The trial judge’s $76,000 damages award was made for physical injuries which he found she had fully recovered from within four years of the crash.

The appeal court panel’s 2-1 majority found no reason to interfere with the trial judge’s conclusion that the woman’s evidence was inconsistent when it came to the location and nature of her injuries, and that her own descriptions were unsupported by her health professionals’ notes and records.

“While the trial judge could reasonably have concluded otherwise, the issue is whether his conclusions are reasonably supported by the evidence and whether he misapprehended the medical evidence. This Court must be careful not to fall into a correctness review, substituting its opinion for that of the trial judge, where the standard demands deference,” the appeal court majority wrote. “In our view, the trial judge’s findings of fact and conclusions are reasonably supported on the evidence and he did not misapprehend the medical evidence.”

“The takeaway here is that credibility is everything,” says Walker, associate with Will Davidson LLP. “If judges and juries don’t believe the plaintiff, then they’re not going to award much of anything.”

And the importance of credibility is enhanced in cases where chronic pain features prominently, she adds.

“It’s difficult to prove chronic pain. However legitimate the claim advanced, chronic pain cases are harder for judges or juries to accept compared to physical injuries like a broken arm, where you can see the crack right on the X-ray,” Walker explains. “With chronic pain, you don’t have that kind of clear evidence, so whether the plaintiff is believed all comes down to how well they testify.” 

The choice of medical experts is critical when advancing claims involving less-obvious injuries, she tells AdvocateDaily.com.

“You want someone with the right experience identifying these issues, and who is able to clearly articulate their findings and opinions to laypeople on a jury,” Walker says. “Just because there aren’t any broken bones doesn’t mean a person is living without significant pain. You want a doctor who can tie all the medical evidence together.”  

According to the Alberta decision, the accident victim was “argumentative, defensive, and evasive” on the witness stand, and frequently shifted her answers to support her claim or dismissed records as wrong when they appeared not to fit her story.

Surveillance video introduced at trial also contradicted her claim that she was unable to pick up boxes when she moved home, and the appeal court majority found the trial judge was entitled to “draw inferences from it relative to her credibility.”

Walker says her clients are often disproportionately worried by the prospect of their surveillance by defendants. While it often occurs, she says it’s rarely a factor in the outcome.

“We’ll often get reports about surveillance, but nothing comes out of it,” she says. “The only time it is an issue is when the plaintiff’s credibility is in play.”

Despite the problems with the Alberta claimant’s case, a dissenting member of the appeal court panel wrote that she would have returned the case to the court below for a fresh assessment of damages after reversing the trial judge’s conclusions on the woman’s chronic pain injuries.

Not only did the trial judge misapprehend the medical evidence supporting the woman’s case, the dissent reads, but he was also wrong to conclude that her injuries were not caused by the accident.

 

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