In McGlue v Girvan, 2024 BCCA 208, the BC Court of Appeal overturned a trial judge’s damages award in a motor vehicle accident case due to serious credibility and reliability concerns. This decision offers important guidance for personal injury cases in which there is minimal or no objective evidence of the plaintiff’s alleged injuries.
At trial, where the defendants had admitted liability, the trial judge awarded the plaintiff $631,341 in damages despite having serious concerns about his credibility. The defendants appealed and, as a result, the Court of Appeal dismissed the plaintiff’s claim for damages finding that the plaintiff had failed to meet his burden of proving causation in light of the issues with his credibility and reliability.
The plaintiff’s trial testimony regarding the aftermath of the accident differed significantly from the defendant driver’s, and the trial judge preferred the defendant’s evidence. The plaintiff gave inconsistent evidence about whether he was injured in the accident and how he felt afterward. His testimony about his medical history was inconsistent and imprecise, as was his evidence about his dismissal from a previous employer and about his history of drug use. Further, he gave incomplete and unreliable information to the medical experts who assessed him, which impacted the trial judge’s assessment of those experts’ evidence. The trial judge also found that the plaintiff had sought to involve the defendant in a scheme to attempt to defraud ICBC by calling first responders to the scene of the accident despite the fact that neither of them was injured, and that the plaintiff had suggested to his former partner that if her evidence at trial corroborated his, it would be financially beneficial to her.
Despite all this, the trial judge, noting that credibility and reliability are not all or nothing propositions, found on the basis of “the evidence as a whole” that the plaintiff suffered various physical and psychological injuries as a result of the accident.
The Court of Appeal could not reconcile the trial judge’s findings regarding the plaintiff’s credibility and reliability with her ultimate conclusion on causation. The Court of Appeal emphasized that in cases where there is little or no objective evidence of continuing injury and the plaintiff is claiming chronic pain, there must be evidence of a “convincing nature” to establish that the pain will continue. A plaintiff’s own testimony may be enough, provided that it consistent with the surrounding circumstances.
In McGlue, however, the Court of Appeal found that the trial judge had not set out any corroborative evidence in support of her finding on causation. Further, after reviewing the evidence regarding the plaintiff’s alleged physical and psychological injuries, the Court of Appeal concluded that there simply was no such corroborative evidence before the trial judge. Thus, it dismissed the plaintiff’s claim altogether rather than remitting it to the lower court for a new trial.
This decision makes it clear that where the nature of the plaintiff’s alleged injuries is such that the plaintiff’s self-report is crucial for establishing causation, the credibility and reliability of the plaintiff’s evidence will be key. If there are concerns about credibility and/or reliability, and especially if those concerns undermine the strength of medical experts’ evidence, the courts may well find that causation is not made out.