March 3, 2014

Kevin Gourlay

Reasons today from Justice Baird in Glesby v. MacMillan, 2014 BCSC 334, taking a 28-year-old art teacher plaintiff to task for being untruthful. The plaintiff’s credibility issues seem to have stemmed from multiple sources.  She claimed debilitating pain and yet she saw her GP on many occasions without mentioning it.  Her lay witnesses did not generally corroborate her reports.  She appears to have been in the courtroom for much of the 8-day trial and the Court clearly did not accept as genuine the pain behaviour she displayed throughout.

Justice Baird had this to say:

[59]         I find that aspects of the plaintiff’s testimonial evidence were exaggerated or untrue. I do not accept, for example, that her physical deficits were ever such that she could not set a table, lift a dinner plate, or carry a water bottle. I do not believe that it takes her five days to unpack groceries from her car. Her explanation for her apparently pain-free demeanour during the yarn bombing video I found more curious than persuasive. I do not accept that her refusal to attend a plain clinic had anything to do with cost, especially when I consider the large sums that she has spent on other treatments, including the many expensive consultations with Miles Buckman which, quite frankly, do not seem to have helped much.

[60]         Mr. Alderman’s evidence, which I accept without hesitation, leads me to reject the plaintiff’s evidence that she was obliged to prepare lessons at David Thompson School after being granted a medical leave. I furthermore dismiss as untrue her assertion that her present unemployment from teaching is voluntary, or caused by her desire to devote herself full-time to the completion of her master’s thesis. She is out of work because, at present, the Vancouver School Board has no work for her.

[61]         I find that I cannot rely entirely on the plaintiff’s testimonial evidence. Accordingly, I turn to other evidence to attempt to determine where the truth lies and whether or not, in the aggregate, such evidence tends to support the plaintiff’s claims of ongoing accident related disability.

[62]         I would begin with the observation that, over the years, the plaintiff seems to have presented herself in different ways to different people. While the plaintiff’s mother and sister gave evidence that is consistent with her own narrative of pain and suffering, in my assessment her father and fiancé were more reserved. They testified to a significant difference in the plaintiff’s demeanour, competence and ability after the accident, to be sure, but neither of them described the acuity of ongoing pain and discomfort that was testified to by the plaintiff, her mother, and sister, or, for that matter, that was displayed in my courtroom during this trial.

[63]         I found the evidence of the remaining supporting witnesses to be curiously muted and lacking in emphasis. Ms. Ewart did not even know that the plaintiff had been in an accident until being told as much shortly before trial, prior to which I infer that she had noticed nothing amiss. Ms. McLean’s observations of the plaintiff’s physical comportment were similarly flat and ambiguous, and fell a long way short of corroborating the plaintiff’s urgent portrayal of her difficulties. Ms. Mitchell, for her part, did not seem to know the plaintiff particularly well, and her specific observations of the plaintiff’s physical demeanour were limited and not terribly persuasive. If these witnesses had ever, on any occasion, observed the unremitting pain symptoms testified to by the plaintiff and others and displayed during this trial, they did not say so. Furthermore, the plaintiff did not present with such apparently advanced symptoms during a 2.5 hour consultation with Dr. Riley only six weeks or before trial.

[64]         In the face of the complainant’s claim to be badly injured and permanently disabled, and given the constant and acute pain symptoms by which she appeared to be afflicted during trial, I find the absence of consistent, cogent, independent corroborative evidence to be troublesome. When I consider the medical evidence, furthermore, I find it remarkable that the plaintiff consulted with her family physician on an approximately monthly basis during the year or so after her return from her graduate studies in Boston in the spring of 2010, but accident-related injuries were never mentioned or noted. The plaintiff testified that this was because her GP has a “one complaint per visit” policy, but I cannot accept this. If she suffered from the sort of serious soft tissue pain that she described in evidence and displayed by her demeanour in court, she would have sought her doctor’s help for it during this period, failing which her doctor would have noticed her obvious distress and taken action.

[65]         I have come to the reluctant conclusion that the plaintiff is exaggerating the nature and extent of her physical difficulties caused by the accident and that she has attempted to mislead me on some important points. I have come to the conclusion that her demeanour and presentation in court, to some degree at least, was histrionic. On the basis of the evidence which I do accept, I find that the accident of April 24, 2009 caused the plaintiff grade II whiplash injuries, and that it is reasonable to suppose that her recovery was prolonged by the sort of “pain cycle” described by Drs. Dommisse and Riley.

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