04 May Credibility of the Plaintiff is Important

Credibility of the Plaintiff in personal injury actions is very important.  In order to assess the appropriate level of compensation, the Court often must rely on the subjective evidence of the Plaintiff concerning the areas of injury, the level of pain they experienced and how the injury progressed over time.  If a Court thinks that a Plaintiff is unreliable, they are less likely to believe their testimony and may make a finding that their injuries are either non-existent or exaggerated.

In the case of Carmichael v. Kwon, 2016 BCSC 265, the Court found that the Plaintiff was credible and this helped her case at trial.  The Plaintiff was involved in two car accidents within a 2-year period, neither of which were her fault.  As a result of the accidents, the Plaintiff changed from a happy and bubbly individual to a “totally different person” who was “emotionally fragile, irritable, and depressed”.  In addition to her depressed mood, the Plaintiff suffered from a variety of other injuries including ringing in her ears, headaches, and pain in her neck, shoulders, lower back, knees, wrist and ankle. The Plaintiff’s most severe injury was to her hips and it was predicted that she would require a hip replacement by the time she was 35.

ICBC argued at trial that the Plaintiff was not credible since her testimony about her injuries differed in some respects from the treatment records of her doctors. The Court rejected ICBC’s argument and found that the Plaintiff’s lack of clarity in explaining her symptoms was not an intention to exaggerate her pain but was merely due to an inability to precisely recall and articulate the experience of pain as it changed over time. This was understandable given the number of locations of her pain and differences in its intensity.   The Court awarded the Plaintiff judgement in the amount of $686,232.

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