Reasons for judgment were released earlier this week in the case of Ross v. Dupuis 2017 BCSC 2159.  This case involved the assessment of damages for a 35 year old female plaintiff, following injury in a car accident that had occurred five years prior to the trial.

The trial judge made a number of interesting comments about assessment of the reliability of evidence given by the plaintiff.  I know from discussions with clients over the years that there is often a reluctance to disclose symptoms that they had prior to an accident, or an inclination to downplay them for fear that they will impact the damages awarded.  The damages that are awarded are meant only to return a plaintiff to the position that they were in prior to the accident, not better.  Pre accident condition is very relevant.  The reasons given in this case show how the manner in which a plaintiff describes her symptoms both before and after an accident can affect the outcome of her case.  Beginning at paragraph 117 the trial judge said as follows:

[117]  As is the case in most personal injury actions, the most important witness is the plaintiff herself.  Once an assessment of the credibility and reliability of the plaintiff’s evidence has been made, the court is generally in a position to determine causation, usually with the assistance of opinion evidence from qualified medical experts.

[118]  A plaintiff who accurately describes her symptoms and circumstances before and after the collision without minimizing or embellishing them can reasonably anticipate that the court will find his or her evidence to have been credible and reliable.

[120]  Overall, I found  the plaintiff to be a genuine and honest witness who testified in a sincere, forthright, and credible manner.  Her credibility was enhanced by her willingness to agree, without hesitation, with questions put to her on cross-examination when appropriate even when her answers went against her interest, for example, her pre-existing pain symptoms and her candid acceptance of statements attributed to her in the various clinical records of physicians who were not called to testify on the basis that “if its recorded there I probably said those things”.  However, she was also steadfast when describing the pain she experienced after the MVA and the effect it had on her, although she had difficulty explaining why some of the clinical records in the month following the MVA make no mention of her having right shoulder pain immediately after the MVA.  The best she could do was to say “I don’t remember”.

The trial judge found that as a result of the motor vehicle accident the plaintiff had suffered a moderate tear to her rotator cuff, a superior labral tear, significant biceps tendinitis, and myofascial soft tissue injuries to her shoulder, neck and lower back sacroiliac joint during the MVA.  He also found that she suffered significant psychological injury and emotional distress, including depression and anxiety as a result of the MVA.  After considering judgment in similar cases and the fact that the plaintiff continued to suffer pain associated with the shoulder, as well as emotional and psychological issues, he awarded $120,000 for pain and suffering.