Armbruster v Nutting – The Defence Wins on Credibility and Failure to Mitigate

Background

In Armbruster v Nutting, 2024 ABKB 36, a plaintiff who was injured in a motor vehicle accident claimed that the pain and suffering caused by the collision had been so debilitating that it prevented him from properly performing his work, leading to two medical leaves from his employment.

The Alberta Court of King’s Bench focused on circumstances leading to a finding that the Plaintiff, injured in a motor vehicle accident, was not credible, failed to prove his losses and had failed to mitigate his damages. In the result, no amounts were awarded for past or future loss of income or earning capacity, and the plaintiff’s entitlement under all heads of damage was reduced by 40%.

Decision

The Court reached its finding that the Plaintiff was not credible and otherwise failed to prove his losses in several respects, namely:

  • Misrepresentations under oath and to experts. The Court found that this was a case of false testimony and assertions designed to help advance the Plaintiff’s claim, with one example being his testimony that his first medical leave was upon the encouragement of his family physician, which his medical records contradicted. As the plaintiff was found to not be credible or reliable, the opinions of his experts that he relied upon were, in turn, found to be unreliable from the judicial perspective.
  • Social Media. While the Plaintiff repeatedly told the Court and expert witnesses that his post-collision medical condition prevented him from being productive and engaged in his employment, his social media postings revealed an individual who was not physically, mentally, or emotionally unable to participate in activities at all.
  • Failure to call witnesses. No one from the plaintiff’s past or present employers, nor any customers, were called to corroborate his claims of employment-related disability. The Court was satisfied that it was appropriate to draw an adverse inference against the Plaintiff for failing to call this evidence and when no explanation for that failure is offered.
  • No objective evidence. Absent the plaintiff’s claims of pain and suffering and associated disability, the Court found no objective, clinical evidence of any bodily injury that might explain his pain. The Court refused to make findings based on his testimony absent confirmatory or corroborative evidence, finding that if all the Plaintiff’s varying and ever-changing explanations do not demonstrate a pattern of deceit, then they must surely lead to no other conclusion than that he is neither credible nor reliable, when recounting the past.

The Court determined that the collision was low impact – “not much more than a glorified fender bender” – and that the Plaintiff’s injuries should have resolved within 12 months. The Court accepted that the Plaintiff suffered a whiplash and a minor concussion as well as long term neck pain, back pain, headache, discomfort, and some impairment of bodily movement, but was not prepared to accept the Plaintiff's assertions concerning the true extent and duration of any pain and suffering when it was not supported or corroborated by evidence.

Due to the plaintiff’s lack of credibility and his failure to provide independent evidence to substantiate his claims for past or future loss of income or earning capacity, no awards were made under these heads of damage. All other heads of damage were reduced by 40% to account for the Plaintiff’s failure to mitigate. To this end, the Court found unchallenged and uncontradicted evidence that the plaintiff was recommended to do many things to assist his recovery and he did nothing or did less than what was recommended. The Court, relying on Defence experts, was satisfied that the plaintiff’s unreasonable conduct in failing to follow treatment recommendations resulted in minimal recovery and a poor prognosis for the future with symptom entrenchment.

Following the release of the Judgement, the Plaintiff filed a Notice of Appeal. This has since been withdrawn and the decision of the Court of King’s Bench stands.

Key Takeaways

  • Credibility and objective evidence: where there are discrepancies in a plaintiff’s assertions, the court will look for objective evidence to substantiate a plaintiff’s claims, in the absence of which, a plaintiff may be found to not be credible.
  • Cascading incredibility: where a plaintiff is untruthful in their self-reporting to an expert and the statements are relied upon, that expert’s opinion may, in turn, be unreliable from the judicial perspective.
  • Social media: online activity can be a valuable resource in assessing the veracity of personal injury claims.
  • Expert selection: quality over quantity in terms of experts (12 Plaintiff experts vs 4 Defence experts).
  • No income loss awards: no awards were granted for past loss of income or future loss of income / earning capacity, thereby upsetting the trend in Alberta courts to compensate a plaintiff for forward-looking income losses whenever there is some semblance of chronic symptomology.
  • Mitigation: a 40% reduction for failure to mitigate is an amount in excess of the usual mitigation reduction (10-25%).