In Canada most believe that innocent victims injured in car accidents should obtain some amount of compensation, however minimal, for pain and suffering and other losses without an attack on the victims credibility- In British Columbia this money usually comes from the Insurance Corporation of British Columbia, ICBC, on behalf of the at fault driver- However in two personal injury appeal decisions credibility attacks and the use of inadmissible evidence against personal injury claimants to convince juries to award little or no money were not sufficient to warrant intervention from the  BC Court of Appeal.

In  Desharnais v. ICBC, et al, 2013 BCCA 113 the injury claimant, a commercial pilot on stress leave at the time of the first accident,  was awarded  $31,000.00 arising from two car accidents. The claimant was unhappy with the award and asserted several grounds of appeal including failure to instruct the jury on inflammatory  comments by the ICBC lawyer, and admitting hearsay evidence through a medical record. All these grounds of appeal were dismissed and with respect the the claimants credibility the Court could not help but to comment at paragraph 65,   

It has been established in numerous cases that where a plaintiff’s credibility is in issue, a jury’s finding on pecuniary loss [ loss of income] may not be assumed to be incontrovertibly correct so as to demonstrate an inconsistency with another finding…In this case, the plaintiff’s credibility was very much in issue.

However, despite the importance of the claimants credibility the trial judge allowed  hearsay medical records to be admitted and the claimants statements were said to be inconsistent with the records. The Court of Appeal acknowledged that the claimant’s own medical report also referenced the medical record and brushed off this error stating at paragraph 96,

I agree with the plaintiff that the trial judge erred in concluding that the records were admissible without first concluding that there was proof of the preconditions under common law or statute…however, I do not see this error as sufficient to warrant intervention from this Court.

In  Bialkowski v. Banfield, 2013 BCCA 130 the injury claimant appealed the dismissal of his lawsuit for compensation arising out of a motor vehicle accident. After 15 days of trial, a jury found that he did not suffer any injury at all as a result of the car accident and his claim was dismissed. The major thrust of the defence was an attack on the credibility of the injury claimant.  Evidence was adduced of long-term pre-existing medical issues and personal difficulties. Surveillance video showed him undertaking physical activities that were not compatible with his claimed injuries and this was supplemented by YouTube videos to the same effect. The defence mounted a successful and serious attack on the appellant’s case aimed extensively at his credibility as acknowledged by Mr. Justice Chiasson.The attack was successful despite some evidence of injury from the family doctor and Mr. Justice Chiasson stated at paragraph 17:

In my view, while a jury cannot ignore such evidence, it may choose to disregard it if the overall credibility of a party results in the jury concluding it does not believe anything the party states.  This was succinctly stated by Madam Justice Southin, as she then was, in Le v. Milburn, [1987] B.C.J. No. 2690 (QL) (S.C.):

When a litigant practises to deceive, whether by deliberate falsehood or gross exaggeration, the court has much difficulty in disentangling the truth from the web of deceit and exaggeration.  If, in the course of the disentangling of the web, the court casts aside as untrue something that was indeed true, the litigant has only himself or herself to blame.

These injury cases both involve litigants with active pre-existing medical conditions. Both had serious issues with respect to the income loss claims and both appear to have given conflicting evidence on keys points of evidence.  These cases may create uncertain risk for litigants in car accident cases and injury lawyers should look at the use of Notices to Admit and objections should also be made immediately to any inflammatory  comments and consideration be given to a request that the jury be struck.

Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

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