Why do we tend to think that car crash victims are faking their symptoms? Will the court think that, too?
There’s a sense in the media and in the world at large that some or many plaintiffs in personal injury actions are ‘faking it.’ We’ve all seen the jokes about jumping in front of expensive cars in the hopes of obtaining a big payout from a wealthy owner (jokes that belie a deep misunderstanding of how insurance operates) and we’ve all seen ICBC’s doom-and-gloom ads about fraud investigations. As a personal injury lawyer, I get asked from time to time if our clients are “totally making it up.” Outside of the distasteful assumption that car crash victims are more interested in money than perhaps not waking up with pain every night, these kinds of inquiries indicate a lack of understanding of how incredibly in depth the personal injury process is.
In reasons released by the British Columbia Supreme Court this week, the court considered the defendant’s argument that the young plaintiff had entirely or almost entirely falsified his symptoms (Gregg v Ralen 2018 BCSC 171). The plaintiff claimed a brain injury and soft tissue injuries, but was apparently a poor historian (that is, he had trouble telling his story accurately). The defendant argued that the plaintiff wasn’t merely unreliable, but was “grossly disingenuous” about his symptoms. The court rejected that argument, based in large part on the wealth of lay and medical evidence that had accrued over the six years since the crash:
[106] The difficulty with the defendants’ argument that the plaintiff was grossly disingenuous about his medical history is that to succeed, it would require a finding that the plaintiff set out after the accident to construct a personal profile and medical history that was false. It would not have been enough for him to give inaccurate evidence in court; he must have given inaccurate information to his doctors over the space of six years. In addition, he would have had to act disingenuously with his friends and family for six years. I conclude that the plaintiff has not done that.
[107] In short, I conclude that the plaintiff experienced the symptoms he has described and that the medical reports accurately reflect the symptoms and conditions that he suffered from following the accident.
In summary? Fooling the court takes more than holding your neck at the doctor’s once or twice. Most personal injury plaintiffs wait years before resolution of their claims – assuming that any significant portion of them are keeping up a sustained act over the course of those years (usually including hundreds of treatment sessions, lawyers’ meetings, and appointments with doctors who specifically test for fraud) just doesn’t make sense. In my experience, every single personal injury plaintiff would rather have their health back than have some big payout – so why don’t we believe them when they say so?
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