March 2, 2014

Kevin Gourlay

Plaintiffs with “invisible injuries” are almost always faced with Chief Justice McEachern’s comments from over 30 years ago in Price v. Kostryba, 1982 CanLII 36 (BC SC).  There, the learned judge stated that courts “should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery.”  CanLii suggests Price has been cited 294 times in BC, undoubtedly the vast majority for that very proposition.

However, as Justice Williams recently noted in Prince v. Quinn, 2013 BCSC 716, Chief Justice McEachern in Price made reference to his own earlier decision in Butler v. Blaylock, [1981] B.C.J. No. 31.  Subsequent to the judgment in Price, the Court of Appeal overturned Butler.  In its per curiam judgment ([1983] B.C.J. No. 1490), the Court stated:

… the plaintiff testified that he continued to suffer pain. His wife corroborated this evidence. The learned trial judge accepted this evidence but held that there was no objective evidence of continuing injury. It is not the law that if a plaintiff cannot show objective evidence of continuing injury that he cannot recover. If the pain suffered by the plaintiff is real and continuing and resulted from the injuries suffered in the accident, the plaintiff is entitled to recover damages.

Burden of Proof

The plaintiff always has the burden of proving their case.  Chief Justice McEachern’s comments notwithstanding, there is no heightened burden because the plaintiff suffers from chronic pain, headaches, or other symptoms that can’t be imaged or objectively confirmed. Chronic pain patients not only have to deal with their disability, they are also have to live with scepticism from employers, physicians, and courts alike.  The Supreme Court of Canada said as much in the opening paragraph to Martin v. Nova Scotia Workers’ Compensation Board, 2003 SCC 54:

1          Chronic pain syndrome and related medical conditions have emerged in recent years as one of the most difficult problems facing workers’ compensation schemes in Canada and around the world. There is no authoritative definition of chronic pain. It is, however, generally considered to be pain that persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques. Despite this lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real. While there is at this time no clear explanation for chronic pain, recent work on the nervous system suggests that it may result from pathological changes in the nervous mechanisms that result in pain continuing and non-painful stimuli being perceived as painful. These changes, it is believed, may be precipitated by peripheral events, such as an accident, but may persist well beyond the normal recovery time for the precipitating event. Despite this reality, since chronic pain sufferers are impaired by a condition that cannot be supported by objective findings, they have been subjected to persistent suspicions of malingering on the part of employers, compensation officials and even physicians. Ruth Laseur and Donald Martin are the appellants in this case. Both suffer from the disability of chronic pain.

Plaintiffs must prove their case.  However, even when the plaintiff suffers from chronic pain, the starting point ought not to be that they are liars or malingerers and that they must prove otherwise.

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