Case summary: Credibility in personal injury claims

  • November 22, 2017
  • Ashley Christie, Navreet Bal and Tory Hibbitt

Petz v Duguay, 2017 ABQB 0090

Justice W.P. Sullivan

Edward Tawkin for the plaintiff

Cory Ryan for the respondent

February 10, 2017

The court’s decision in Petz v Duguay highlights the importance of establishing a plaintiff’s credibility in personal injury matters, as subjective testing and self-reporting underlying an expert’s opinion cannot be relied upon, unless the credibility of the plaintiff is first established.

In this case, the plaintiff brought a personal injury claim after a motor vehicle accident on Sept. 12, 2004. The defendant’s vehicle made a left turn across the path of the vehicle in which the plaintiff was a passenger. Liability was admitted, but the issues at trial were the plaintiff’s injuries and quantum of damages.

Over the course of a four-week trial, Justice Sullivan considered the testimony of various expert witnesses, the plaintiff’s evidence and expert witnesses on behalf of the defendant. The plaintiff’s experts testified that she suffered from ongoing chronic pain syndrome and somatic symptom disorder. Their opinion evidence was undermined by overall finding that the plaintiff lacked credibility. According to the court, the plaintiff’s testimony had included numerous inconsistencies over the course of the trial and surveillance illustrated that the she had not been forthright.

Conversely, the defendant argued that the plaintiff’s collision-related symptoms had resolved and that any ongoing symptoms were unrelated. As a result of credibility concerns, Justice Sullivan preferred the evidence of the two orthopedic surgeons put forward by the defendant — Dr. Lowell van Zuiden and Dr. Richard Hu — over the expert evidence put forward by the plaintiff.

As a result of the plaintiff’s lack of credibility, both her evidence and that of her treatment providers was disregarded, as they relied almost entirely on self-reported complaints. In fact, the court held that there was insufficient evidence to support her claims and that many of her complaints were unverifiable. Consequently, the court refused to award the plaintiff damages for loss of housekeeping, cost of future care, or loss of future income or earning capacity. The court found that the plaintiff's injuries had resolved by October of 2008 and awarded the plaintiff a total award of $76,028.00, which included general damages of $50,000.00, loss of past income of $21,710.00 and out-of-pocket expenses of $4,318.00.

Takeaways: Credibility of the plaintiff can have a significant impact on an award. Expert reports should be carefully assessed to see if the expert has relied almost entirely on the plaintiff’s self-reporting. If they have, and the plaintiff ultimately lacks credibility, the expert evidence may be discounted.

This decision is under appeal.

Prepared by Ashley Christie, Navreet Bal and Tory Hibbitt, McLennan Ross LLP