Credibility and reliability of the Plaintiff’s Evidence

A tactic often used at trial is to diminish the credibility of a witness.  In reviewing case law on this specific issue, it identifies a few steps you can take with your clients to carefully prepare them for trial.  In addition to that, there is a very worthy exercise that is noted, especially where your client’s injuries are subjective, a review of the clinical records is a really important exercise for purposes of extracting any of the objective findings from the treating providers.

It is not always possible to remember all the details of a collision and when memory does not serve well, this is used as a factor to diminish one’s credibility.  Reviewing your client’s evidence provided at a discovery with them is a worthy exercise as any inconsistent statements may be raised by defence to state that a Plaintiff is an unreliable witness, a poor historian or not a credible Plaintiff.  (Not always fair comments but that’s unfortunately what does happen at trial).

We will review a recent decision referenced as Tathgur v. Dobson, 2018 BCSC 1384. 

The defence in this decision states that the Plaintiff’s evidence is not reliable, and therefore is not a credible witness.  These were the arguments raised by the defence:

• the injuries suffered by the Plaintiff are “almost entirely subjective”
• the Plaintiff testified in an evasive manner
• the Plaintiff was vague
• the Plaintiff was a poor historian
• some of the testimony at trial was inconsistent with the evidence and records of the treatment providers and with answers given at his discovery
• the Plaintiff is an unreliable historian
• the review of the whole of the evidence indicates that the Plaintiff lacks credibility

The Court in this case did not agree with all the points raised by the defence and stated:

I do not agree that there is little or no objective corroborating evidence.  Dr. Manga provided evidence of multiple objective findings on physical examination as noted in his clinical records.  It is not necessary to refer to each such finding, some examples will suffice:

• May 27, 2008 – soft tissue muscles on left side of neck and left and right low back were tender and taut;
• June 9, 2008 – paraspinal muscles tender and taut, acute musculoligamentous spasm observed, anti-inflammatory injection given;
• June 12, 2008 – reduced range of motion;
• June 30, 2008 – reduced range of motion;
• July 27, 2009 – torso in spasm convex to left, anti-inflammatory injection given;
• June 22, 2010 – tender and taut on back;
• July 13, 2010 – patient in agony, spasm, injection given;
• October 27, 2010 – spasm, range of motion grossly restricted;
• November 17, 2011 – neck and adjoining upper back tender and taut;
• April 7, 2012 – range of motion in low back restricted; and
• June 1, 2012 – spasm, tenderness, taut, range of motion markedly restricted.

The Court went through the records and identified several more objective findings made by the Plaintiff’s treating experts and specialists.  It was also helpful that the experts were compelling in their observations.  Furthermore, test results from an MRI also showed objective findings of annular tears and disc bulges.

The Court states:

Mr. Tathgur’s subjective reporting remains the only evidence of his pre-accident health and the primary evidence of the intensity and frequency of his symptoms and the impact they have on his functionality.  Accordingly, notwithstanding the consistent objective evidence, it is important to exercise caution and examine Mr. Tathgur’s testimony carefully.

A review of the law is very helpful but also the commentary from this decision is worth reading.  I have quoted directly from this published decision:

[107]     The proper approach to assessing the truthfulness of any interested witness’s testimony was articulated in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) at 357:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions….

[108]     The factors identified by Justice Dillon in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff’d 2012 BCCA 296, also play a role in assessing whether the evidence of a witness is truthful and accurate.  These factors include the ability of the witness to resist being influenced by his or her interest in recalling those events; the internal and external consistency of the witness’s evidence; whether the witness’s evidence harmonizes with or is contradicted by other evidence, particularly independent or undisputed evidence; whether his or her evidence seems unreasonable, improbable or unlikely, bearing in mind the probabilities affecting the case; and the witness’s demeanour, meaning the way he or she presents while testifying.

In reviewing the defence arguments, the Court was not persuaded that the flaws in consistency or what appeared to be exaggerated symptoms impacted the Plaintiff’s credibility

The Court also highlighted the quotation by McEachern C.J.S.C., as he then was, in Diack v. Bardsley (1983), 46 B.C.L.R. 240 (S.C.) at 247, aff’d (1984), 31 C.C.L.T. 308 (C.A.):

… I wish to say that I place absolutely no reliance upon the minor variations between the defendant’s discovery and his evidence. Lawyers tend to pounce upon these semantical differences but their usefulness is limited because witnesses seldom speak with much precision at discovery, and they are understandably surprised when they find lawyers placing so much stress on precise words spoken on previous occasions.

Also, the Court stated:

“as noted by Justice Smith in Edmondson at paras. 32–35, Chief Justice McEachern’s observation noted above applies with even greater force to statements in clinical records, which are usually not a verbatim record of everything that was said, and inconsistencies are almost inevitable when a number of clinical records made over a period are being considered.”

Also, which is the case for many Plaintiffs:

“…language difficulties could have led to some confusion.”

“I did not find the inconsistencies relied on by the defendants to be material in any event.”

The Court’s final comments:

 I found Mr. Tathgur to be a generally forthright and credible witness.  

 

See Disclaimer in About Page.