Evaluating Credibility and Assessing Loss of Earning Capacity
Reasons for judgment were released on Friday of last week in the case of Ma v. Haniak. This case concerned the Plaintiff’s claim for damages from injury in three motor vehicle accidents. Fault for all three accidents was admitted and the trial was solely to assess the amount of damages the Plaintiff was entitled to. The Plaintiff proceeded to trial without legal counsel. The judgment provided the trial judge with the opportunity to review two very important legal principles, how credibility is evaluated and how loss of earning capacity is assessed. Ultimately the trial judge found that the plaintiff was not credible or reliable. He found this despite the recognition that her self representation and lack of skills or ability to present her case as effectively as counsel may have impacted the presentation of the case. However, he found that this impact on the presentation of her case did not affect his findings relating to her reliability and credibility. The trial judge found that the Plaintiff’s reliability and credibility stood apart from the legal and strategic aspects of the trial.
In assessing reliability and credibility, the trial judge quoted from the summary of the test found in Bradhsaw v. Stenner, 210 BCSC 1398, aff’d 2012 BCCA 296 at paragraph 186 where Madam Justice Dillon wrote as follows:
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), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various facturs 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 demeanor of a witness generally (Wallace v. Davis,  31 O.W.N. 202 (Ont. H.C.); Faryna v. Chorny,  2 D.L.R. 354 (B.C.C.A.) [Faryna]; R. v. S. (R.D.),  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).
 Moreover, the assessment of a witness’s credibility must reasonably subject the witness’s story to an examination of its consistency with the probabilities of the surrounding conditions or circumstances. The real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those circumstances.
The above provides a clear picture of how trial judges assess reliability and credibility in any trial. As can be seen from this, there are a variety of factors that are taken into consideration in the assessment of reliability and credibility including both the manner in which the witness presents their evidence as well as the opportunity to observe events. A significant part of every trial is the testing of all witnesses evidence in terms of reliability and credibility.
In the decision, the trial judge also provided a great summary of the law relating to loss of earning capacity and how it is assessed by our courts. This was done by quoting from the decision of Madam Justice Warren in Sirak v. Noonward, 2016 BCSC 274 at paragraphs 168 and 169 which provided the following helpful summary of the authorities dealing with lost income earning capacity: (references omitted)
 Past income loss and future income loss are both properly considered as components of lost or impaired income earning capacity.
 The principles governing the assessment of loss of income earning capacity claims have been articulated most clearly in judgments dealing with future losses. However, the same principles apply to both the past and future. They include the following:
(a) Assessing damages for loss of income earning capacity typically involves the consideration of what actually happened in the past, what would have happened in the past had the impairment not occurred, what would have happened in the future had the impairment not occurred, and what will happen in the future given that the impairment has occurred. Again, the standard of proof relating to actual past events is a balance of probabilities, but simple probability is the standard applicable to hypothertical events which will be considered as long as there was or is a real and substantial possibility the event would have or will occur;
(b) The plaintiff must first establish an impairment to his or her earning capacity and a real and substantial possibility that the impairment has and/or will result in a pecuniary loss;
(c) Having done so, the plaintiff is entitled to compensation for the loss of impairment of his or her earning capacity as a capital asset;
(d) The process of valuing the loss or impairment is an assessment and not a mathematical calculation; however, mathematical, statistical and/or economic evidence may assist in the analysis and, if that is the case, the court should start by considering such evidence;
(e) Having done so, the overall fairness and reasonableness of the award must be considered, taking into account all “possibilities and probabilities, chances, opportunities and risks”.
The above quotation demonstrates the variety of factors that are taken into consideration by our courts in determining whether a loss of earning capacity has been suffered and in valuing that loss where it is present. At a very basic level this involves an assessment of what would have happened if the individual had not been injured.