How will my credibility impact my award at trial?
In the recent case of Lamb v Fullerton (2016 BCSC 1694), the court was unable to award the plaintiff with anything more than nominal damages due to serious credibility issues. The plaintiff was involved in six motor vehicle collisions in the time period of August 1, 2009 to January 31, 2012, however only four of the collisions were at issue in the trial. The plaintiff was riding his motorcycle during all the collisions in question and claimed numerous injuries, including that he was vomiting 100 times a day. Despite the court finding the defendants 100% liable for each of the the collisions in question, the plaintiff could not establish his injuries on a balance of probabilities for a number of reasons, including minimal corroborating evidence, no records or receipts of expenses related to his injuries, and no expert medical evidence. Further, the court found his claims outlandish, riddled with inconsistencies, and impaired by the fact that the plaintiff admitted to being under the influence of marijuana while testifying. Given the plaintiff’s lack of credibility and reliability, the court was unable to conclude that the plaintiff suffered from any of the injuries he claimed, awarding the plaintiff only $4,500 in damages for all the collisions at issue. Below are just some of the comments the court made in regards to the plaintiff’s lack of credibility:
[8] The critical questions to be answered are what actually happened in the moments before and after the accidents in issue; what injuries, if any, were caused by the accidents; and what effect those injuries have had on Mr. Lamb’s life. Accordingly, Mr. Lamb’s subjective reports provide the foundation for his claims. As in most cases involving subjective complaints, the answers to these questions turn to a significant extent on his credibility. It is particularly important to exercise caution and examine his evidence carefully: Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.) at 399.
[9] Mr. Lamb’s testimony was unsatisfactory. Regrettably, I have concluded that it is almost wholly unreliable in establishing that any injury or aggravation of injury was caused by these accidents, particularly in the complex circumstances of a serious, ongoing pre-existing condition and two intervening accidents that are not the subject of this action.
[10] Mr. Lamb unreasonably persisted in making claims that were inconsistent with either independent evidence or other aspects of his own evidence, and he made little, if any, attempt to explain the inconsistencies. Two particularly striking examples were his insistence that his behavioural and memory problems were aggravated by the accidents in question and his repeated assertion that he broke his clavicle in the December 8, 2010 accident.
[13] Mr. Lamb acknowledged that he attended Peace Arch Hospital after the December 8, 2010 accident and that a variety of diagnostic tests were performed there, including x-rays. He acknowledged that he was subsequently told by his family doctor that there were no fractures. He led no medical evidence to the effect that he had fractured his clavicle. Yet, when testifying about both the January 21, 2011 accident and the February 2011 accident he repeated that he had broken his clavicle in the December 8, 2010 accident.
[14] Mr. Lamb also baldly advanced claims, some of which were out of the ordinary and even outlandish, without corroborating evidence in circumstances where one would expect corroborating evidence to exist.
[15] Mr. Lamb claimed to have been vomiting 100 times in a day. He claimed that the bowel incontinence was so severe that he was using countless incontinence pads and 20 gallons of isopropanol annually to clean his soiled clothing. He offered his own opinion as to the cause of these conditions, which was blood accumulating in his stomach as a result of bleeding from his esophagus caused by wincing and cringing due to the pain. Yet, he appears to have taken few, if any, steps to obtain medical attention for these conditions; he offered no medical evidence to support his own dubious opinion as to the cause of these conditions; and he produced not even a single receipt for isopropanol or incontinence pads.
[16] Mr. Lamb claimed to have broken several teeth, both real teeth and dentures, in some of the accidents in question but no documents such as dental records or receipts were tendered in evidence to support those claims.
[19] There were several inconsistencies in Mr. Lamb’s evidence. A couple of examples will suffice. He admitted that he was working within weeks of the August 2009 accident, but he also admitted that he told Dr. Bernard Tessler, the neurologist who conducted an independent medical examination at the request of the defendants, that he was unable to return to work for several months following the August 2009 accident. At trial, he initially denied being hit over the head with a pipe by the driver of the vehicle involved in the February 2011 accident but when confronted with his examination for discovery evidence to the effect that he was hit on the helmet with a pipe more than once, he changed his testimony and agreed that he had indeed been hit with the pipe.
[20] Mr. Lamb acknowledged having been untruthful in other contexts. He admitted that he told a surgeon who performed his cataract surgery in June 2012 that he had undergone chemotherapy for leukemia but he seemed to reluctantly acknowledge during the trial that he has never had leukemia.
[22] Mr. Lamb’s demeanor in court was peculiar. He laughed at inappropriate times, smiled in an odd manner, engaged in unusual bodily movements, became extremely agitated over minor issues such as his inability to locate his reading glasses, and generally displayed a histrionic demeanor. He testified that he used “copious” amounts of marijuana and admitted to being under the influence of marijuana while testifying. Of course, the unusual behaviour might relate to the brain injury he sustained in 1999 but, in the absence of reliable medical evidence to explain the odd behaviour, I was left with significant concerns about Mr. Lamb’s ability and inclination to give a reliable account of the material events, his injuries, and the effect his injuries have had on his life.
[23] I have concluded that some aspects of Mr. Lamb’s testimony were fabricated.
[27] In contrast to Mr. Lamb’s testimony, the evidence of the other witnesses was credible. None of them were shown to have given materially inconsistent evidence and their testimony was reasonable. In the result, I prefer the evidence of the other witnesses where it conflicts with Mr. Lamb’s evidence.
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