Plaintiff’s Credibility Stands In Way Of Successful Damages Claim feature image

Plaintiff’s Credibility Stands In Way Of Successful Damages Claim

When someone is involved in a motor vehicle accident, it’s not uncommon for injuries from the accident to persist of a long period of time. Damages for ongoing chronic pain as a result of an accident are something that accident victims may rely on their insurance company to collect. However, it’s not always easy for courts to determine whether or not someone’s ongoing ailments are a result of an accident or not. In a recent decision from the Court of Appeal of Alberta, a lower court’s decision to deny damages to a plaintiff was upheld when the court found the plaintiff to lack credibility.

The accident and original trial

The plaintiff was involved in a motor vehicle accident on September 12, 2004. The defendant admitted liability, and a trial was commenced on October 24, 2016 to determine damages. The primary issue at the original trial was whether or not the plaintiff’s ongoing chronic pain was a result of the accident.

The trial judge failed to find the plaintiff to be a credible witness. The court summarized the plaintiff as “argumentative, defensive, and evasive in her cross-examination. There are many examples where she answered a question and, when it appeared evident that her answer could not be correct, she would shift to another explanation or rely on her view that the records were simply wrong.”

The court provided a number of examples to back this up, including:

  1. She did not complain of any accident related symptomatology to (the first doctor) between September 2004 and November 2007;
  2. She did not report any accident-related symptoms to (the second doctor), who she said she was seeing for only accident-related issues, between October 26, 2005 and November 13, 2007 ˗ a fact with which (the second doctor) also agreed;
  3. (The second doctor) conceded that the appellant did not tell him that she had pelvic pain before the motor vehicle accident nor that she underwent pelvic physiotherapy before the accident occurred;

In addition to her doctors’ comments, the court was also presented with video surveillance which showed the plaintiff picking up boxes when she moved in 2008. She had previously testified that she did not pick up any boxes, stating “I did not even pick up my own boxes in 2008 when I moved.”

Meanwhile, the trial judge found the defendant’s expert evidence, which showed no connection casual connection between the accident and the plaintiff’s chronic pain, to be credible. As a result, the trial judge awarded damages only for injuries that were found to be a direct result of the accident.

Issue on appeal

The court did not discuss the “legitimacy of a psychological condition such as chronic pain…” Instead, the court asked itself it was appropriate for the court to review the trial judge’s findings on the issue of causation. After noting the high standard of review when it comes to a trial judge’s finding of fact coupled with expert evidence, the court (in a majority, though not unanimous decision found,

“The trial judge preferred the respondent evidence that other stressors in the (plaintiff’s) life and potential secondary financial gain are the likely cause of the current SSD and chronic pain diagnosis. While the trial judge could reasonably have concluded otherwise, the issue is whether his conclusions are reasonably supported by the evidence and whether he misapprehended the medical evidence. This Court must be careful not to fall into a correctness review, substituting its opinion for that of the trial judge, where the standard demands deference. In our view, the trial judge’s findings of fact and conclusions are reasonably supported on the evidence and he did not misapprehend the medical evidence”

The court dismissed the plaintiff’s appeal on the merits.

The insurance team at HMC Lawyers has over 130 years of combined litigation experience and have worked on countless insurance claims on behalf of our clients, including those injured in motor vehicle accidents. We know the importance of following deadlines and recoding evidence in such matters. Our exceptional, insightful, and timely advice is designed to help our clients achieve the best possible result for their insurance coverage disputes. Please call us at 1-800-480-3534 or reach us online to discuss your issue today.






mobile skyline

Contact HMC Lawyers for Exceptional Legal Guidance

At HMC Lawyers, we offer strategic legal advice. Our breadth of practice experience allows us to promptly handle almost every litigation-related legal issue that may arise, and anticipate potential roadblocks that may delay its resolution. To make an appointment with a member of our team, contact us online or call 403-269-7220

For articling and/or summer student inquiries please contact either Kristen Hagg or Praveen Thind by calling 403.269.7220 or emailing them directly at

HMC Lawyers LLP
#1000 903 8th Ave SW
Calgary, AB
T2P 0P7

    Please provide us with as much detail as you can about your case. A lawyer from HMC Lawyers will be in touch as soon as possible.

    I have read the disclaimer.