Chronic Pain Plaintiff with “Questionable” Credibility “Just Barely” Meets Threshold


Since our original post about this case, we were advised by Doug Smith, counsel for the defence, about some additional and pertinent facts. His comment appears at the end of this post but, in a nutshell, he told us that at the opening of trial, counsel for the plaintiff obtained an order adding the Police Services Board as a defendant. Apparently, Justice Harris ruled that the Board was not a protected defendant. That circumstance explains why His Honour did not apply the Insurance Act deductible and why the award included an amount for health care benefits.

Mr. Smith also told us that the trial judge was nevertheless asked to rule on the threshold issue in any event of his decision, given the possibility of an appeal.

We think that the case is still of interest, because of the threshold ruling in the face of what seems to have been very strong evidence from the defence, and on the possible application of a mitigation argument to the FLA claims.

In light of this information, the original post has been revised. We encourage readers of this blawg who know of any information that sheds light on the decision, to submit a comment to that effect. The beauty of having these commentaries online is that they can be updated and corrected, where necessary!

The revised original post follows:

In Ksiazek et al. v. Newport Leasing Limited, Superior Court Justice Raymond Harris did a methodical analysis of a chronic pain claim arising out of a 1998 motor vehicle accident. Despite his dissatisfaction with the plaintiff’s case, on a number of fronts, His Honour found that the plaintiff had “just barely” met the Bill 59 threshold under s. 267.5 of the Insurance Act. He assessed her general non-pecuniary damages at $60,000 but then reduced those damages and the pre-trial income loss damages ($72,800) by 25% on account of the plaintiff’s failure to mitigate.

This case was an assessment of damages, liability for the accident having been admittted. The total award was $131,100. However, the assessment of damages raises some questions, which are discussed in this post.

The plaintiff was a young woman who, nine months before the accident, had quit school to work as a waitress. In the accident, she fractured two fingers and her sternum, but these injuries had largely resolved by the time of trial. Her main complaints were of post-traumatic stress syndrome, mild traumatic brain injury, neck and low back pain and “a major depressive disorder resulting from the above injuries”.

Justice Harris reviewed the medical evidence in detail and noted that there was no objective proof that the plaintiff had suffered a head injury which had caused her depression. He said that “although subjective proof of her experiences post-accident is a consideration, such proof will only be reliable if the plaintiff is reliable. As I will explain later in my analysis, the plaintiff’s reliability is questionable.”

His Honour catalogued numerous points on which the plaintiff’s testimony had successfully been impeached by surveillance video and other evidence. He concluded that the plaintiff “is not a reliable historian”, that “various psychological test results are suggestive of malingering” and that “she gave information about the accident that belie [sic] her assertion of having no memory of the accident”. Counsel for the defence could be forgiven for wondering what more he had to do in order to succeed on the threshold issue. However, Harris J. ruled that the plaintiff had “just barely” met the threshold and he assessed her general non-pecuniary damages at $60,000. (As noted above in the Addendum, the threshold ruling was made despite the fact that Justice Harris had added the Police Services Board as an unprotected defendant. This was done at the request of counsel, for purposes of a possible appeal.)

Justice Harris discussed the law relating to mitigation of damages (paras. 98-110 of the reasons) and then applied that law to the facts of this case. He found that the plaintiff had failed to attend physiotherapy and psychotherapy sessions, had stopped taking her medication and had not diligently pursued educational/vocational opportunities available to her. He reduced her general non-pecuniary damages and her pre-trial income loss damages by 25% as a result. For some reason, the future care damages of $7,500 were not reduced on account of mitigation.

Damages under the Family Law Act were awarded to four claimants. There was no discussion in the reasons of the basis for these awards, which were $10,000, $8,000, $3,000 and $3,000 respectively. It is not even clear what relationship the claimants had to the injured plaintiff.

The FLA damages, totalling $24,000, were not reduced on account of the plaintiff’s failure to mitigate. We think a strong argument can be made, that they should have been, although we have not found a case that has considered this issue. Section 61(3) of the Family Law Act provides that in an action under subsection (1) [which establishes the right of dependants to claim damages for injuries to certain relatives], the right to damages is subject to any apportionment of damages due to contributory fault or neglect of the person who was injured or killed”.

It is interesting that the wording of subsection 61(3) does not use the same language as that found in section 3 of the Negligence Act, which speaks of “fault or negligence” on the part of the plaintiff: “In any action for damages that is founded upon the fault or negligence of the defendant if fault or negligence is found on the part of the plaintiff that contributed to the damages, the court shall apportion the damages in proportion to the degree of fault or negligence found against the parties respectively.”

Given that there was an “apportionment of damages” done by Justice Harris, on account of the plaintiff’s failure to take all reasonable steps to avoid loss after the accident, it would seem to us that the requirements of s. 61(3) have been met and the FLA damages ought to have been reduced by 25% to reflect the plaintiff’s “fault or neglect” in failing to mitigate.

We wonder what a jury would have done with this case…

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