Court dismisses ICBC fraud claim

In reasons for judgment released last week, the court in Insurance Corporation of British Columbia v. Mehat, 2017 BCSC 1476, dismissed an action brought by ICBC alleging fraud against a husband and wife who were involved in a single-vehicle accident.  ICBC's case was that the husband and wife had lied to police and ICBC about who was driving their car at the time it crashed into a house.  ICBC alleged that the husband had been driving and was drunk at the time.  The defendants maintained that the wife had been the driver.  In dismissing ICBC's case, Mr. Justice Blok said as follows:

[1]             The plaintiff insurer claims sums totalling $73,421.88, plus punitive damages, for what it describes as a “straightforward case of insurance fraud”.

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[61]         There is no direct evidence that Mr. Mehat was driving the car or, to put it another way, that Ms. Mehat was not driving the car.  The only direct evidence, that is, from any witness who was in a position to know who was driving, is that Ms. Mehat was driving the car...

62]         The issue, then, is whether the circumstantial evidence in this case is sufficient to prove that the representations of the defendants were false...

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[74]         The plaintiff relies on a number of other facts as part of its case.  I deal with these as follows:

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b)    the accident is strange and unexplained: Ms. Mehat did, in fact, provide an explanation to the police, saying to Cst. Johannson that she “got dizzy and couldn’t find the brakes”.  We know from ordinary human experience that many accidents are strange, but it does not necessarily mean that something fraudulent is going on or that the accident could only have happened because the vehicle driver was intoxicated;

c)     Mr. Mehat exhibited signs of excessive alcohol consumption, and this provided a strong incentive to avoid being found to be the driver; and Mr. Mehat was the usual driver of the van: these circumstances also provide an incentive to have another person do the driving.  For that reason I consider these to be neutral facts;

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e)    Ms. Mehat was unable to locate a witness who could corroborate her assertion that she was the driver or at the scene of the accident: I find this fact unpersuasive; and

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[75]         For all of the reasons just outlined I conclude that the plaintiff has failed to meet its burden, on a balance of probabilities, of showing Ms. Mehat was not the driver of the van when it collided with the Sharma house on June 10, 2008.  It follows that the plaintiff has failed to establish that the representations of the defendants were false.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/14/2017BCSC1476.htm

Court dismisses plaintiff's claim finding accident "never happened"

In reasons for judgment released today, the court in Chaube v. Neja, 2017 BCSC 1415, dismissed the plaintiff's claim finding the alleged car accident "never happened".  In Chaube, the plaintiff alleged she had been injured when the taxi she was in collided with an unknown car while backing out of a parking stall.  The defence argued that no collision occurred, but that the taxi driver simply applied his brakes and stopped.  In agreeing with the defence and dismissing the claim, Mr. Justice N. Smith said as follows:

[1]             The plaintiff, Rekha Chaube, seeks damages for injuries suffered in a motor vehicle collision that the defendants say never happened.

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[3]             The plaintiff said that as the taxi was backing out of its parking space, it collided with another vehicle that had apparently just entered the parking lot. However, the defendant driver testified that he saw the other vehicle and stopped in time to avoid a collision. The other vehicle and its driver remain unidentified.

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[24]         In a case where the conflicting testimony of the parties cannot be weighed against any other testimony, there is simply no basis on which I could find the plaintiff’s evidence to be more reliable than the defendant driver’s. That means that, on the critical question of whether a collision occurred, the plaintiff has failed to meet the burden of proof.

[25]         Counsel for the plaintiff argued that, even if there was no collision, the defendant driver’s own evidence shows that he was negligent and that a sudden stop was capable of causing the plaintiff’s soft tissue injuries.

[26]         The theory of a sudden, hard stop without a collision does not accord with anyone’s evidence. The plaintiff was adamant that there was a collision that she both felt and heard. The defendant driver agreed that his stop was “quick” and was necessary to avoid a collision, but did not agree that he had to “slam on the brakes”. He said he had travelled only a very short distance at a very slow speed.

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[32]         I repeat that the plaintiff has the burden of proving that the defendant driver did not meet the applicable standard of care. I find that she has failed to satisfy that burden of proof and her action must be dismissed with costs.

The text of the full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/14/2017BCSC1415.htm

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

Helpful comments from the Court of Appeal on Chronic Pain

In reasons for judgment released yesterday, the BC Court of Appeal in Park v. Targonski, 2017 BCCA 134, made some very helpful comments on Chronic Pain.  The court wrote:

Chronic pain

[76]         Chronic pain is a complex disorder. Dr. Lu explained that it negatively impacts sleep, energy, mood, and motivation. The medical evidence established that Ms. Park’s chronic pain manifested itself as hypersensitized and widespread pain that developed over time from her physical injuries. The psychological component of her pain is made evident in her ongoing issues with sleep, lack of energy, anxiety, lack of motivation and depressed mood.

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[86]         The complexity of chronic pain was acknowledged in Martin v. Nova Scotia (Workers’ Compensation Board), 2003 SCC 54, where Mr. Justice Gonthier, for the Court, wrote:

[1]        Chronic pain syndrome and related medical conditions have emerged in recent years as one of the most difficult problems facing workers’ compensation schemes in Canada and around the world. There is no authoritative definition of chronic pain. It is, however, generally considered to be pain that persists beyond the normal healing time the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques. Despite this lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real. While there is at this time no clear explanation for chronic pain, recent work on the nervous system suggests that it may result from pathological changes in the nervous mechanisms that result in pain continuing and no-painful stimuli being perceived as painful. These changes, it is believed, may be precipitated by peripheral events, such as an accident, but may persist well beyond the normal recovery time for the precipitating event. Despite this reality, since chronic pain sufferers are impaired by a condition that cannot be supported by objective findings, they have been subjected to persistent suspicions of malingering on the part of employers, compensation officials and even physicians. …

[87]         As in Martin, the medical evidence in this case conclusively established that Ms. Park’s pain is real, even though it includes a significant psychological component, and that its ongoing nature renders her vulnerable to depression. In my view, the judge erred in rejecting the subjective component of Ms. Park’s chronic pain as not being credible when he had accepted that component of her pain as an injury that was caused by the Accident. Even rejecting her evidence, there was a substantial body of medical evidence to support the reasonableness of her reported symptoms and their effect on her motivation. This error, in my respectful view, led the judge to focus principally on the physical nature of Ms. Park’s injuries and her physical capacity to do certain tasks, while discounting the distinct but inter-related emotional and psychological components of her injury, in assessing her functional capacity.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/ca/17/01/2017BCCA0134.htm

Court dismisses plaintiff’s claim finding she suffered “no compensable injury”

In reasons for judgment released yesterday, the court in Sandhu v. Raveendran, 2017 BCSC 499, dismissed the plaintiff’s claim for personal injuries concluding the plaintiff did not suffer “any compensable injury” during a low-speed parking lot collision.  Mr. Justice Brown wrote as follows:

[1]             The plaintiff, Ms. Kamaljit Kaur Sandhu (“Ms. Sandhu”), alleges she was injured on March 8, 2012, when a Chevrolet Lumina vehicle (“the Chevrolet”) in which she was a passenger entered a shopping mall parking lot located at 31205 Maclure Road, in Abbotsford, B.C. She says that the Chevrolet was struck (the “Accident”) by a 2011 Honda Odyssey van (“the Honda”) being driven by the defendant, Mr. Rajesh Kuniyil Raveendran (“Mr. Raveendran”). The plaintiff’s husband, the defendant, Mr. Jagdev Sandhu (“Mr. Sandhu”), was driving the Chevrolet.

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[54]         Of course, parking lot collisions may cause significant vehicle damage and some bodily injury especially when one or both parties are driving too fast. This is not one of those cases. One car was standing still, the other rolling slowly backwards.

[55]         The plaintiff presented as a pleasant person. Her counsel submitted she was a good witness because, in effect, she stood her ground and insisted she had been injured; but that ground was also populated with many responses of not knowing and not recalling events. As for the mechanics of the injury, when impartial senses contradict what a witness with a vested interest says happened, as in this case, the former, depending on the all the circumstances, should hold greater sway.

[57]         In this case, I find a lack of convincing evidence that this minor, slow-moving parking lot accident caused the plaintiff any compensable injury. Accordingly, the plaintiff’s claims for damages are dismissed with costs.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/04/2017BCSC0499.htm

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.

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[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

Court Finds Plaintiff "Not Truthful" after viewing ICBC Surveillance Video

In the recent decision of Churath v. Cheema, 2016 BCSC 2303, the court found that the plaintiff was “not truthful” to both the court and his treating doctors, on the basis of video surveillance obtained by ICBC.  The court said:

[56]         The plaintiff complains of pain and limitations in movement. He has informed vocational and rehabilitation consultants of severe limitations to his capacity to function. I am not persuaded, however, that he has always told the truth to these experts nor to this Court.

[62]         Mr. Gautam invites me to ignore the video. I do not consider that would be appropriate. I find the plaintiff has not been forthright with this Court when describing his pain and disability. I believe he is more physically able than he wants this Court to believe.

The full text of the decision can be found here: http://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc2303/2016bcsc2303.html?resultIndex=1