In this coming out of the closet injury claim (Kitney v. ICBC) the court accepted that the claimant was involved in a serious accident and suffered a retinal tear and strains of the neck and mid- and low-back.
However, despite the claimant testifying that he was unable to work he was videotaped working outside the door of a nightclub. The claimant insisted that the Pub’s gay customers were a quiet, cooperative lot and that he had never been required to physically eject anyone. He admitted, however, that apart from checking patrons’ identification, his role included keeping a lookout in the laneway in an effort to protect patrons and provide security.
Over a period of months the claimant duped his physicians, his disability insurer, his parents and his friends into believing that he was so disabled as to be unable to work, to drive or to enjoy any recreational activities. As the judge observed:
“While the plaintiff downplays the event, I find it is significant that several months after the accident, the plaintiff decided to “come out of the closet” and live openly as a homosexual. None of the ‘close friends’ called as witnesses at trial were aware of this. His parents (more particularly his father) were shocked and had a great deal of difficulty accepting this. For a period, the plaintiff’s father would not speak to him. Mr. Kitney formed a close relationship with a J.R. and they moved in together at some point in the last year. This individual (who would have day to day contact with Mr. Kitney and could describe his ongoing disability firsthand) was never called as a witness. Thus, the court is left with the evidence of Mr. Kitney and a roster of witnesses who were all apparently unaware of this major turn in the plaintiff’s life and his new employment at the Underground Pub. He was in effect leading a secret life, adopting a lifestyle and employment which none of these witnesses were aware of.”
The judge, having observed the claimant testify at trial and lamely attempt to offer several explanations for his deceitful behaviour, formed the very strong view that his evidence lacked any strong degree of credibility. In all of the circumstances, and discounting the claimant’s evidence to account for what the court believed to be his own exaggerated and dishonest description of some of his injuries, the judge did not see fit to award anything more than nominal damages in this case. The judge awarded the claimant $15,000.00 for his pain and suffering. Take a read through some of my other articles on the importance of credibility in a personal injury claim.
As Southin J. (as shethen was) noted in Le v. Milburn (1987) B.C.J. No 2690, Vancouver Registry No. B861193, December 15, 1987 (B.C.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…”
Posted by Mr. Renn A. Holness