19 May Credibility Important at Trial

Personal injury lawsuits arising from motor vehicle collisions rarely proceed to trial. However, when they do the plaintiff’s credibility is of critical importance. 

In Curry v. Powar, 2015 BCSC 610, the Plaintiff sought compensation for the following injuries arising from a motor vehicle collision: (1) left-sided thoracic outlet syndrome, (2) right hip joint injury, (3) cervical spine injury, and (4) depression.  The Plaintiff’s credibility was at issue.  

At trial, Mr. Justice Tindale summarized the law with respect to credibility as follows:

  [179]     As Madam Justice Dillon noted in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff’d 2012 BCCA 296, regarding credibility generally:

[186]    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 factors 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 demeanour of a witness generally (Wallace v. Davis (1926), 31 O.W.N. 202 (Ont. H.C.); Faryna v. Chorny (1951), [1952] 2 D.L.R. 354 (B.C. C.A.) [Faryna]; R. v. S. (R.D.), [1997] 3 S.C.R. 484 (S.C.C.) at para.128). 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).

[180]     In Stull v. Cunningham, 2013 BCSC 1140 at paras. 71-73, Mr. Justice MacKenzie, in reviewing the law on assessing the credibility of the plaintiff, stated the following:

[71] On this issue, it is helpful to recall the comments of N.H. Smith J. in Carvalho v. Angotti, 2007 BCSC 1760. At para. 15 he states:

The attack on the plaintiff’s credibility is based, in part, on various contradictions and inconsistencies within her evidence at trial and between that evidence and her discovery evidence, documents she prepared for other purposes, or statements recorded in clinical records. It is a rare case of this kind where such inconsistencies cannot be found. By the time a personal injury case gets to trial, the plaintiff typically will have provided information to a number of people – including doctors, adjusters and disability insurers – on a number of occasions over a period of years. This provides fertile ground for cross-examination precisely because very few people will have perfect and identical recollection on each of those occasions.

[72] On this point, I agree with Smith J. that inconsistencies in what the patient says to a medical practitioner sometime prior to testimony at trial will not, in and of itself, determine the credibility of any particular plaintiff.

[73] Similarly, many years ago in Diack v. Bardsley, (1983) 46 B.C.L.R. 240, McEachern C.J.S.C., had this to say at para. 30:

I wish to say that I placed absolutely no reliance upon the minor variations between the Defendant’s discovery and his evidence. Lawyers tend to pounce upon the semantical differences but their usefulness is limited…

[181]     In this case, the plaintiff clearly has objective injuries to his neck and hips. My concerns about the plaintiff’s evidence relates to his credibility as to the severity of his injuries such as his right hip more so than whether or not he was injured. Keeping in mind the comments in Stull, I recognize that minor inconsistencies are expected in cases of this nature. However, the plaintiff, in my view, has demonstrated that he is prepared to embellish his evidence with regard to the severity of his injuries.”

In the end, the Judge found that the Plaintiff suffered a significant neck and hip injury, chronic pain and depression.  However, given his concerns with respect to the Plaintiff’s credibility and the lack of independent objective evidence, the Judge found that the Plaintiff did not suffer from thoracic outlet syndrome.

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