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Language barriers and credibility

If I am second-language English, will my misuse of language be held against me?  What if it is clear that my command of the language isn’t strong?

In a decision released on November 23, 2016 (Lally v. He 2016 BCSC 2187), the plaintiff (Ms. Lally) was injured when her car was hit by another vehicle attempting to make a right turn. She suffered soft tissue injuries to her neck, low back, and shoulder, which continued to plague her at the time of trial over four years post-collision.

Like all soft tissue injury claims, the evidence is based on the plaintiff’s subjective complaints of pain. Accordingly, courts exercise caution and examine the evidence carefully. In this case, ICBC’s counsel argued that Ms. Lally attempted to mislead the court about her physiotherapy attendance in India (while on honeymoon), and a general willingness to mislead.

In the assessment of her credibility, Madame Justice Warren noted that the plaintiff made several admissions against interest (admitted unhelpful facts) about her stretching habits – or lack thereof – and that the witnesses observed behavior consistent with her description of limitations. She concluded that Ms. Lally was generally credible, and made the following comments about the physiotherapy discrepancies raised by the defence:

[70]        I disagree with the defence characterization of this aspect of Ms. Lally’s testimony.  It depends entirely on the timing of the honeymoon and the day trips, and Ms. Lally’s testimony concerning the timing of the trips was expressly stated by her to be an estimate.  She said that she was unable to recall the specific dates of the trips.  In particular, she estimated that the trip to Shimla was about a month after the wedding.  The wedding was on March 19, 2012 and the trip to Shimla lasted three days.  The Shimla trip could have taken place in the days just before April 15, 2012.  This would still place it about a month after the wedding.  In the circumstances, it is not implausible that Ms. Lally attended 28 physiotherapy sessions between April 15, 2012 and May 15, 2012.

[71]         The defence also submits that the physiotherapy records from the Puri Clinic are inconsistent with an email Ms. Lally wrote to an ICBC employee on April 10, 2012.  That email reads:

Hello Sir,

As you know I am in India & I am getting physiotherapy treatment here for my back & neck pain & I am getting better. So, doctor advised me for more treatments. Now I am continuously seeing a physiotherapist & I’ll give you more updates simultaneously.

[72]         The defence emphasizes that Ms. Lally told the ICBC employee on April 10, 2012 that she was seeing a physiotherapist “continuously” and yet she did not start attending the Puri Bone and Joint Care Clinic until April 15, 2012.  The defence says this was intentionally misleading.

[73]         Again, I disagree with the defence characterization.  Ms. Lally said that prior to April 10, 2012 she had gone to see some of the doctors she used to work with at a hospital in a neighboring village and, on their recommendations she underwent three or four physiotherapy treatments there, prior to commencing treatment at the Puri Bone and Joint Care Clinic.  I have not overlooked the fact that before giving that evidence she said that other than seeing a Dr. Sharma on April 4, 2012 and having the physiotherapy treatments at the Puri Bone and Joint Care Clinic she had not gone anywhere else for treatment while in India, but she may simply have forgotten about the earlier physiotherapy treatments.  More fundamentally, however, the email itself is inconsistent with an intention to mislead.  She admits in the email that she is “getting better”.  If she was intent on misleading ICBC, it is unlikely that she would admit to getting better.  Further, she explained that, on reflection, she had used the word “continuously” incorrectly.  She said that she had been told to “continue” with physiotherapy while in India and when she used the word “continuously” what she meant was that she was continuing her physiotherapy.  It is clear from the face of the email that she does not have a perfect command of the English language.  I accept her explanation.

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