Sunday, February 27, 2011

ICBC'S Unsupported Attack on Plaintiff's Credibility Backfires

In a recent case Zen v. Redhead, 2011 BCSC 190,  ICBC argued that the Plaintiff had intentionally exagerating his injuries in the hope of being awarded a large damage award.  Despite ICBC's attacks on the Plaintiff's credibility, Madam Justice Fenlon of the Supreme Court of British Columbia awarded the Plaintiff over $2 million dollars.  Fenlon J. addressed the attacks on the Plaintiff's credibility as follows:

Should the plaintiff be believed?

[6] Counsel for the defendant submits that Mr. Zen recovered fully from the accident within months but “simply will not admit it.” She argues that Mr. Zen “is an opportunist who has intentionally exaggerated his pain behaviour and reporting in the hope of being rewarded significant compensation.”[7] In Bradshaw v. Stenner, 2010 BCSC 1398, Dillon J. summarized the factors to be considered when assessing credibility at para. 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, [1952] 2 D.L.R. 152 (B.C.C.A.) [Faryna]; R. v. S.(R.D.), [1997] 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).
[8] The defendant argues that Mr. Zen’s testimony is inconsistent with his pre-accident medical records which “show that Mr. Zen was a man with significant emotional and physical problems.” By way of example, the defendant points to six episodes of back pain reported by the plaintiff in May 1990, May 1993, August and September 1993, January 1997, and July 2002. Based on these episodes of back pain over the 16 years before the accident, the defendant says that the plaintiff should not be believed when he says he did not have a chronic back problem, but only “the odd episode of lower back pain”.[9] The defendant also argues that the plaintiff should not be believed because a Revenue Canada tax audit suggests that Mr. Zen improperly claimed personal expenses (such as a trip to the Wickaninnish Inn with his wife) as business expenses. The defendant described Mr. Zen as “a man with few ethical qualms”, “intoxicated with self importance and feelings of entitlement”, whose testimony should be rejected whenever it was not corroborated by objective, reliable evidence.
[10] There are times when a trial judge listening to submissions about the credibility of a party is left to wonder if judge and counsel have heard the same evidence. This is such a case. 
[11] Mr. Zen testified at length and was cross-examined for two days. I found his evidence as a whole to be forthright, consistent, and inherently believable. It was in keeping with the evidence of other witnesses, including his co-workers and wife. Mr. Zen’s evidence, in general, was also consistent with the documentary evidence and voluminous medical records. 
[12] It was apparent that Mr. Zen is a man who shows a brave face to the world and is not comfortable talking about his own weakness. He gave evidence in a direct, unemotional manner, but broke down and wept as he described the way his injuries have affected his family life, in particular his relationship with his three daughters and his wife. He described a life that has been significantly changed by the accident. 
[13] Mr. Zen was an athlete, described by one medical expert as “an exercise junkie”. Mr. Zen expressed frustration and anger about the limitations he has experienced at work and socially since the accident. He described daily pain from constant low-grade headaches and occasional severe and sometimes disabling headaches that overwhelm him and “knock him out”. He testified to ongoing severe low back spasms, and constant back pain. 

[14] Mr. Zen has followed all recommendations for treatment. He has gone to extraordinary lengths to find relief for his symptoms, including prolotherapy involving saline injections by needle into his skull, neck and low back. These are not the actions of a malingerer or a man who is not highly motivated and focused on getting well.[15] In summary on this issue, I found the plaintiff to be a credible witness. I turn now to a consideration of the specific injuries reported by Mr. Zen.

Fenlon J. summarized her findings with respect to damages as follows: 
[106] In summary on this issue, I set past loss of earning capacity at $340,000. I set future loss of earning capacity at $1,485,000.
[107] In summary, damages are awarded as follows:

Non-pecuniary damages

Special Damages:

Personal Training Sessions

Physiotherapy and Chiropractic Treatment

Integrative Therapy and Prolotherapy

Psychological Counselling

Mileage and GP Fees

Cost of Future Care

Counselling and Pain Management

Training and Structural Integration

Loss of Earning Capacity to Trial

Future Loss of Earning Capacity


posted by Collette Parsons at


Post a Comment

Subscribe to Post Comments [Atom]

<< Home