If I have a history of lying for economic gain, will the judge believe my description of invisible injuries? What other types of evidence will they need?
In a decision released this week by the British Columbia Supreme Court (Chong v. Nguyen, 2017 BCSC 1564), the plaintiff was a young woman who suffered soft tissue injuries in three collisions. Soft tissue injuries are invisible (they don’t show up on an x-ray or scan), and usually require the court to believe the plaintiff’s description of pain. In this case, the plaintiff had provided incorrect information to doctors preparing reports, and admitted that she lied to prospective employers about her qualifications for jobs. Mr. Justice Sewell observed that the lies to prospective employers “demonstrated a that she is prepared to be untruthful in pursuit of an economic objective” (para 31).
Nonetheless, he was swayed by the supportive testimony of the witnesses of their observations of a change in the plaintiff after the collisions. He was further convinced by the opinions of the doctors, and by the observations of the evaluator of her functional capacity – who observed movement patterns consistent with the symptoms she described. Moreover, the ICBC lawyer did not question her on her “malingering” or exaggeration, and ICBC’s video surveillance of the plaintiff did not convince the judge that she was disingenuous with her claims:
[35] Despite my concerns, I accept Ms. Chong’s evidence that she continues to be in pain from the injuries she suffered in the accidents. Her evidence in this regard is supported by the numerous lay witnesses who described her demeanour and behaviour after the accidents. In addition, both Dr. Kowalyk and Dr. Pande found her complaints of pain to be genuine and neither suggested any malingering on her part. While both doctors commented on the fact that Ms. Chong’s reaction to her pain seemed to be disproportionate to the degree of pain she reported, they attributed that reaction to psychiatric conditions.
[36] I also note that Mr. Hosking, a certified work capacity evaluator who prepared a fundamental capacity report, found that Ms. Chong’s observed movement patterns were consistent with lower back pain aggravated by standing and walking. Mr. Hosking found that Ms. Chong had put in a somewhat variable but mostly higher physical effort during testing and overall considered her reports of pain and disability to be moderately reliable.
[37] Finally, I take into account the fact that defendants’ counsel did not put the proposition that Ms. Chong was malingering to her in cross-examination. The defendants did tender some video surveillance of Ms. Chong. However, I could see nothing in that surveillance to cause me to conclude that Ms. Chong’s reports of pain and discomfort are not genuine.
[38] Based on all of the evidence, and despite taking into account Ms. Chong’s admitted history of unreliability, I generally accept her evidence about her present symptoms.
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