Court rejects plaintiff’s evidence, finds complaints of pain due to “factitious disorder or malingering”

In reasons for judgment released today, the court in Ma v. Haniak, 2017 BCSC 549, rejected the evidence of the plaintiff and found that her complaints were as a result of either a “factitious disorder or malingering”.  Mr. Justice Armstrong wrote:

[1]             The plaintiff Yin Yin Ma (“Ms. Ma”) was in a car accident in September 2007. She was involved in two other car accidents in 2009 with her brother Hla Shwe Maung. Liability for these collisions is admitted by the defendants and the trial concerned the assessment of damages payable to both plaintiffs, each of whom contends that they suffer from incapacitating and permanent injuries.

[2]             Ms. Ma has asked the court to award her approximately $175,000 for non-pecuniary damages, $243,000 in past wage loss, $616,000 for impaired earning capacity, $409,000 in future care costs, $20,000 in housekeeping expenses and $12,000 for special damages.

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[107]     Overall, Ms. Ma claims to be virtually incapable of any physical activity because of severe, constant and unrelenting pain at many times since the three accidents and at the time of trial.

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[126]     I except that surreptitious video presentations of injured plaintiffs can be misleading; in the circumstances of this case I am satisfied that Ms. Ma’s physical movements on August 9, 2011 were entirely incongruous with her testimony concerning her physical ability and dexterity at the time and since.

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[291]     The defence argues that the plaintiff is a malingerer who might have been motivated to exaggerate her claims because she has had no economic success since immigrating to Canada in the early 1990s. There is no evidence that proves her ability to earn income other than her work in very modest manual labour positions. The defendants argue that evidence of her past economic performance goes against any assertion that, but for the accident, she would have been economically successful.

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[306]     For the reasons that follow, I am satisfied that Ms. Ma’s claims that she has experienced and continues to experience extreme levels of disabling pain throughout her entire body are unreliable and not credible. Further, although I accept that Ms. Ma suffered injuries to her neck, back and left side because of the three MVAs, I do not accept her evidence concerning the extent and duration of those symptoms. I find that the plaintiff exaggerated some of these symptoms and feigned others.

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[325]     In addition to exaggerating her claims, I find Ms. Ma’s testimony to be reflective of her expectations that her descriptions of pain would be helpful in increasing her damages claim and augmenting for her personal financial gain. Ms. Ma conceded that she had written letters outlining her symptoms and injuries to her doctors and requested that they keep those letters to deal with ICBC. The nature of this correspondence suggests that Ms. Ma was pain focused and intent on maximizing her compensation claim rather than on following her doctors’ advice concerning active rehabilitation and recovery.

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[331]     I find that Ms. Ma has not proven on a balance of probabilities that she suffers a chronic pain syndrome or fibromyalgia caused by the three MVAs. Based on all of the evidence, I conclude that the plaintiff claims that she suffers extremes of pain and discomfort throughout her body and which she says completely and permanently disabled her are animated by a factitious disorder or malingering.

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[374]     Ms. Ma will have judgment for the following:

a.     non-pecuniary damages $35,000;

b.     past wage loss $10,300;

c.     special damages $3,400; and

d.     the parties will be at liberty to speak to the question of costs.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/05/2017BCSC0549.htm