On December 21, 2009, Justice Peter Clark of the Alberta Court of Queen's Bench issued his written reasons for judgment in Tavakoli v. Junghans, 2009 ABQB 756.
The Plaintiff, a 38 year old general labourer, was involved in a rear-end motor vehicle collision on June 23, 2002 (prior to the Minor Injury Regulation coming into force). The damage to his vehicle was assessed at $4,271.21. The collision speed was estimated to be between 24 and 46 km/hour. The Plaintiff was wearing his seatbelt. He attended at the emergency ward a few hours after the accident and was diagnosed with a whiplash type injury. He largely stopped working between the date of the accident and trial.
Liability was admitted. The Plaintiff claimed the accident caused a psychiatric condition called “Somatoform Disorder”, which causes the perception of pain where there is no physical medical explanation. He was seeking damages for pain and suffering, loss of amenities and housekeeping, loss of past and future income, cost of future care and out of pocket expenses. The trial took 14 days.
The Defendant produced expert psychological evidence which demonstrated that the Plaintiff had deliberately exaggerated his symptoms. The Defendant also produced video surveillance which showed the Plaintiff had mislead the court about his functional capacity. This made credibility an issue, and enabled the Court to consider damaging character evidence, including the Plaintiff's prior shoplifting and assault charges as well as his failure to report income on his tax returns.
The Court applied the following legal principle: When a litigant practices to deceive, whether by deliberate falsehood or gross exaggeration, the court has much difficulty in disentangling the truth from the web of deceit and exaggeration. If, in the course of the disentangling of the web, the court casts aside as untrue something that was indeed true, the litigant has only himself or herself to blame. . . In the result, all the Plaintiff's evidence, together with all medical evidence that was based upon the Plaintiff's self-reporting, was rejected. The Court held that the Plaintiff had failed to establish on a balance of probabilities that the accident caused the injuries for which he sought damages and his claim for damages was dismissed entirely.
This case is a rare result, but illustrates the potential risk to a Plaintiff with credibility issues.
This alert is a general overview of the subject matter and cannot be regarded as legal advice. Please contact Alexis Moulton or Dave Risling, or any other member of our Insurance Practice Group for further advice on this or any other Insurance Law matter. |
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