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Credibility of the Plaintiff

If ICBC is able to point to times in my life when I have not been totally truthful with others, will that hurt my credibility to the point that it destroys my case?

In the recent case Kallstrom v Yip (2016 BCSC 829), the plaintiff was involved in six car crashes between 2001 and 2004, five of which were the subject of the lawsuit, and none of which were dramatically significant by way of severe impacts with lots of twisted metal. She claimed that she suffered injuries in those collisions that resulted in debilitating chronic pain and depression leading to multiple suicide attempts. She claimed that those injuries made it difficult for her to hold down any long term employment and her personal relationships suffered.

Mr. Justice Kent noted that in the circumstances of the case, the credibility and reliability of the plaintiff’s evidence must be scrutinized with care, pointing out that the case relied substantially on medical assessments paid for by the plaintiff’s lawyers, and also pointing out an unfortunate tendency of the plaintiff to focus on the collisions as the source of all of her problems while minimizing any other potentially contributing factors:

 [339]     Ms. Kallstrom’s case relies substantially upon the medical opinions of various experts retained by counsel to provide “independent” assessments of Ms. Kallstrom, in most cases, many years after the MVAs.  Ms. Kallstrom did not call as expert witnesses most of the general practitioners, psychologists, psychiatrists or other health professionals involved in her treatment and care either before or after the MVAs.  While extensive clinical records for most of these health professionals were put into evidence, more detailed opinion evidence from Ms. Kallstrom’s treating general practitioners and psychologists would likely have assisted the Court in better understanding the plaintiff’s pre-accident mental and medical conditions, and the involvement of factors unrelated to the MVAs in the development of her chronic pain and depression.

[340]     Assessing the credibility and reliability of Ms. Kallstrom’s evidence is also complicated because she clearly has a tendency to, as Dr. Anderson puts it, “catastrophize” her symptoms and to focus on the MVAs as the source of all her physical and psychic psychological complaints.  In doing so she tends to minimize, if not dismiss, other physical and psycho-social events such as pre-existing medical conditions, family court litigation, abusive employers and even other injury incidents (e.g. falling down stairs and fracturing her arm).

He used, as a starting point for his assessment of the plaintiff’s credibility, a quote from a previous case where the factors and approach for assessing credibility are summarized:

[341]     The factors and approach to be considered when assessing credibility were usefully summarized by Dillon J. in Bradshaw v. Stenner, 2010 BCSC 1398, aff’d 2012 BCCA 296, as follows:

[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.); Farnya v. Chorny, [1952] 2 D.L.R. 152 (B.C.C.A.) [Farnya]; 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 (Farnya at para. 356).

[187]    It has been suggested that a methodology to adopt is to first consider the testimony of a witness on a ‘stand alone’ basis, followed by an analysis of whether the witness’ story is inherently believable.  Then, if the witness testimony has survived relatively intact, the testimony should be evaluated based upon the consistency with other witnesses and with documentary evidence.  The testimony of non-party, disinterested witnesses may provide a reliable yardstick for comparison.  Finally, the court should determine which version of events is the most consistent with the “preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions” (Overseas Investments (1986) Ltd. v. Cornwall Developments Ltd. (1993), 12 Alta. L.R. (3d) 298 at para. 13 (Alta. Q.B.)). I have found this approach useful.

Mr. Justice Kent listed some of the factors raised by the defendants to attack the plaintiff’s credibility:

[342]     The defendants cast various aspersions on Ms. Kallstrom’s credibility.  Among other things, they argue:

  • she has “lied on her resume” in the past;
  • she falsely stated she was in fine health when she went on her vacation to Mexico shortly before the first MVA, when, in fact, the Pharmanet records evidence the dispensing  of anti-depressants, anti-inflammatories, muscle relaxants, Tylenol 3 and Imovane in the three months before the MVA;
  • she exaggerates and characterizes very minor accidents as involving “violent impact”;
  • she minimizes the “devastating” role of the family law litigation over Cole and the 2012 workplace incident when they were clearly major psychological stressors; and
  • she shrewdly pursued secondary gain by improperly filing claims for WCB compensation and, in one instance, used such a report to increase her bargaining position with a former employer.

In the end, Mr. Justice Kent believed the plaintiff with regard to the issues that counted:

[343]     I am inclined to agree that Ms. Kallstrom is intelligent and shrewd, and that in her testimony, she has maximized the effect of events favouring a positive outcome in this litigation while minimizing events that might have a negative impact on the same.  I am also inclined to agree that Ms. Kallstrom’s perception of events is, to some degree, coloured by her medical and emotional difficulties.  However, while I approach Ms. Kallstrom’s evidence with caution, I do not believe she is complaining of pain and medical disability which does not exist, nor do I believe Ms. Kallstrom is deliberately or falsely exaggerating matters for purposes of secondary gain.  I will address these issues further in my findings respecting Ms. Kallstrom’s injury and disability.

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