March 20, 2014

Kevin Gourlay

Reasons for judgment today from Madam Justice Griffin following an 11-day trial in J.D. v. Chandra; J.D. v. Collier, 2014 BCSC 466.  The plaintiff was injured in car accidents in 2006 and 2010.  She was 17 at the time of the first accident.  By the time of trial, she was 25 and in her second year of law school.  Because of the potential for publication of her ongoing deficits to adversely affect her career, Justice Griffin granted an order anonymizing her name in the reasons.

The plaintiff suffered soft tissue injuries in the accidents that left her with chronic pain in her back, right shoulder, and neck.  While liability was admitted for both accidents and the defence acknowledged she had some residual symptoms, they challenged the extent of her ongoing deficits, their impact on her future career, and her credibility generally.  With respect to the latter, the defence pointed to relatively minor inconsistencies and the now-common tactic of using Facebook photos from a fixed moment in time that show the plaintiff having fun to challenge the plaintiff’s assertion that symptoms remain.  Madam Justice Griffin deals with these submissions in a fair and reasonable way:

[106]     The defendants suggest that at times the plaintiff’s evidence was directly contradicted by other evidence, undermining her overall credibility.  Numerous examples were given by the defendants but I was unconvinced that any of them amount to a material inconsistency or support an inference that the plaintiff was attempting to exaggerate or mislead.

[107]     For example, the defendants argued that it was material that the plaintiff described a needle she was given in her shoulder as a “long needle” that “hurt very bad”, whereas the physician who gave the injection testified and said the needle was a short one and that typically patients report that they are surprised how little the needle hurts.  With respect, I do not see this as a material as patients’ individual perspectives can vary greatly.  The plaintiff had nothing to gain by exaggerating the size of the needle; it was hardly going to increase her damages award if it was a big or small needle.

[108]     As another example, the defendants pointed to various photographs of the plaintiff which she had posted on her Facebook page, showing her engaged in many activities since the accidents.  The defendants suggest that these photographs are inconsistent with the plaintiff’s evidence in court, as thought she might be over-playing the degree to which her back pain and later her shoulder pain affected her daily life.  I do not give any weight to these criticisms.  A snapshot does not show anything but a moment in time, and does not disprove that the plaintiff also had many times when she declined to participate in activities or felt in significant pain after trying to engage in activities.  Furthermore, the plaintiff’s physicians encouraged her to stay as active as she could.

[109]     With respect to any impression that the plaintiff’s evidence at times focussed more on the impact of her injuries than on her remaining abilities, I attribute to the nature of her recounting the past several years of her history under guidance of her lawyer’s direct examination in the courtroom setting.  Her lawyer’s role is to educate the court on how her injuries affected her.  Thus, her emphasis in her direct evidence on her injuries, as opposed to focussing on her remaining abilities, is a natural outcome of this process.

[110]     The defendants also argue that at times the plaintiff’s evidence as to conversations she had with others was directly contradicted by the other person’s evidence, whether it be a comment she purportedly made to Dr. Hirsch about disliking math (which she denies), or a comment she said was made by the defendant Ms. Collier immediately after the second motor vehicle, denied by Ms. Collier.  The situations of these conversations allow for mistaken memories on the part of all of the involved witnesses.  These conversations are not material and the inconsistencies do not undermine the plaintiff’s credibility as to how she continues to suffer pain from her injuries.

The Court rejected the plaintiff’s assertion that but for the accident, she would have gone to medical school rather than law school. However, the Court also noted that given relative earnings, it was likely immaterial:

Mr. Carson provided tables of 2006 Census data setting out average earnings for BC women with completed medical degrees and those with completed law degree.  Over a career estimated to begin in 2013 as a doctor, or in 2013 as a lawyer, the present value of lifetime earnings (plus 10% attributed to benefits) is $2,141,500 for a medical graduate versus $2,111,802 for a law school graduate.  The difference of $29,698 in my view is not statistically significant when considering the very general nature of these statistics and the many lifetime variables that may affect actual earnings.

Damages of $516,398 were awarded, including $372,960 for loss of earning capacity based on a 20% reduction in the plaintiff’s ability to earn income as a lawyer.


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