Court declines to follow long-standing case law instructing judges to be "exceedingly careful" when examining subjective complaints of plaintiffs

In reasons for judgment released on December 22, 2016, the court in Deol v. Sheikh, 2016 BCSC 2404, criticizes long-standing case law from 1982 which stated “a defendant is often at the mercy of a plaintiff in actions for damages for personal injuries because complaints of pain cannot easily be disproved” and that courts “should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery”.  In Deol, Madam Justice Griffin writes:

[108]     Since many people experience a minor injury at some point in their lives and get better from it, the idea that someone else might have lasting severe and debilitating pain from a minor injury has long been met with skepticism.

[109]     In the legal system the argument was typically advanced that patients complaining of this kind of disorder were exaggerating for the sake of an ongoing legal claim, given that medical science could not understand why someone would have pain in the absence of an objective ongoing injury.

[110]     It was in this context and the then state of medical science that more than 34 years ago McEachern C.J.S.C. (as he then was) wrote the judgment of Price v. Kostryba...

[111]     As was pointed out by Mr. Justice Kent in Kallstrom v. Yip, 2016 BCSC 829 at para. 335, the Butler v. Blaylock decision relied upon in Price was overturned on appeal; see [1983] B.C.J. No. 1490 (C.A.). There is no principle by which plaintiffs suffering chronic pain ought to be subject to a higher standard of proof or a higher degree of skepticism.

[112]     Medical science and technology have advanced since the Price decision. Medical science has come to accept that some people can suffer an increased and prolonged sensitivity to pain from what to others appears to be a minor injury.

...

[120]     The underlying concern in Price had to do with the question of how a defendant can defend against false complaints of chronic pain since such complaints depend so much on a plaintiff’s own testimony, which is necessarily self-serving given that the plaintiff is seeking compensation.

[121]     Experience has shown that this is not so difficult a question to answer. Many disputes in the courts turn on circumstantial evidence, and that is how cases involving chronic pain are often proven and disproven.

[122]     The medical experts in chronic pain cases typically put plaintiffs through a series of tests and manoeuvres designed to reveal if the person is exaggerating or making claims of pain that make no sense.

[123]     Further, the lives of these types of plaintiffs pre-accident and post-accident are gone over with a fine tooth comb to reveal consistencies and inconsistencies with the claim. The “before” and “after” accident picture of the plaintiff is usually the best source of information as to how the accident impacted the plaintiff, and medical experts also rely on this to a great extent. Often years pass before these cases are brought to trial, reducing the possibility that a plaintiff can keep up a false act.

The full text of the decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/16/24/2016BCSC2404.htm