I clearly remember that my symptoms started with the collision – but my doctor didn’t make any notes about it until much later. Will the court believe me?
In a decision of the Supreme Court of British Columbia released this week, Justice Armstrong discussed causation of pain in the plaintiff’s hip (Erwin v Buhler 2017 BCSC 362). The plaintiff had been involved in a collision, which had caused him a number of physical injuries. He argued that those physical injuries included trochanteric bursitis – a particular type of hip injury. The defendant, however, argued that the trochanteric bursitis was not caused by the crash. The defendant’s argument was based on the pattern of clinical entries – while there were some passing references to generalized hip pain in the first few entries after the crash, notations related to the type of radiating pain caused by tronchanteric bursitis started almost nine months later.
At trial, the plaintiff testified that he clearly remembered the radiating hip pain starting with the crash. The plaintiff’s medical expert, relying in large part on the plaintiff’s subjective reporting of the onset of his symptoms, provided his opinion that the tronchanteric bursitis was caused by the collision. The defence medical expert, who relied more heavily on the pattern of clinical entries than the memories of the plaintiff, found that the tronchanteric bursitis clearly started about nine months after the collision.
After acknowledging the weaknesses inherent in using clinical notations as evidence, Justice Armstrong sided with the defendant on causation. While the plaintiff was likely honestly mistaken in his memory regarding symptom onset, writes Justice Armstrong, on the balance of probabilities the court could not find that the trochanteric bursitis was caused by the collision:
[106] I accept that the plaintiff may have formed the view that his right hip symptoms appeared immediately after the accident, but I cannot accept that his recollections on this point are reliable. While witnesses should initially be presumed to be truthful, a witness can honestly believe the truth of statements he makes in testimony but be mistaken because of the passage of time or some unconscious tendency to reconstruct facts: see Hardychuk v. Johnstone, 2012 BCSC 1359 at para. 10.
[107] I believe that this happened to the plaintiff. His testimony was highly unusual. He claimed that the pain started in his left hip and migrated to his right hip. The manner in which he described this symptom satisfied me that he experienced these symptoms intermittently, that they coincided with his complaint of low back pain and that they were confined to the region of each back pocket, rather than to the right trochanteric region. It is my view that the plaintiff’s use of the term “hip” to describe those symptoms did not implicate an injury to the trochanter caused by the accident.
[…]
[114] On the whole of the evidence, I am not able to accept the plaintiff’s evidence as convincing. It does not prove that he experienced pain at the trochanter bursitis from the accident onwards; rather it is most likely these symptoms evolved after his September 2011 session with Dr. Leung.
[115] Thus, I find Dr. McGraw’s assumptions flawed and his diagnosis that the trochanteric bursitis caused by the August 2011 accident not proven on the balance of probabilities. It is imply possible but not proven, that something else t may have triggered the plaintiff’s bursitis.
[116] In short, the plaintiff has not established on a balance of probabilities that his right hip trochanter bursitis was caused by the defendant’s negligence.
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