When you have been seriously injured in a car accident and are facing financial hardship, you may be hesitant to contact a lawyer about your case. But the fact of the matter is that attempting to serve as your own lawyer in a personal injury lawsuit, especially one where you are seeking a significant amount of damages, is an uphill battle. And many victims find they are unable to separate their strong feelings about the case from the need to present credible, objective evidence in court.
To put things a bit more bluntly, you cannot just walk into B.C. Supreme Court, tell the judge the accident ruined your life, and that you should be awarded millions of dollars in damages. Even when the defendant was clearly responsible for causing the accident itself, you still need to not only connect the accident to the injuries you suffered, you must also present sufficient evidence to show the difference in your pre- and post-accident lives.
A recent decision by a B.C. Supreme Court judge, McPhail v. Ross, offers something of a cautionary tale. The plaintiff in this case was involved in a December 2012 car accident in Vancouver. The defendant, the other driver involved, admitted fault for the accident. This left the Court to resolve only the plaintiff’s claim for damages.
The plaintiff’s claim was substantial. He asked for over $300,000 in non-pecuniary damages as compensation for his “pain and suffering,” as well more than $6 million for the loss of past and future income. Ultimately, the judge awarded the plaintiff just over $37,000.
So what went wrong with the plaintiff’s case? First and foremost, he represented himself at trial. This did not go over well with the judge, who observed in her final judgment that “in giving his evidence, [the plaintiff] was unable to resist arguing his case. He was incapable of resisting the influence of interest in building his case, and incapable of presenting facts and events in anything close to an objective way.” In the end, this damages the plaintiff’s credibility with the court.
The second problem was that the plaintiff presented no real evidence beyond his own testimony about the impact of the accident on his life. From his perspective, the plaintiff was a promising graduate student whose future career prospects were destroyed as a result of the defendant’s negligence. According to the plaintiff, he moved to B.C. from Manitoba in 2008 to pursue a master’s degree at UBC. He was still working to his degree in mid-2012 when he learned about a cyst that required surgical removal. The surgery, in fact, took place nine days after the car accident.
The plaintiff told the court that he felt “injured and sore” immediately following the accident. But he did not seek medical attention until two days later, when he saw his family doctor. This doctor provided the only expert testimony in support of the plaintiff’s case. But even here, the doctor could only present the court with a summary of his clinical records, which in turn were largely based on the plaintiff’s subjective complaints about his own symptoms.
In the years following the accident, the plaintiff said he was unable to find work within his chosen field. Although he did complete his master’s degree, the plaintiff said he was forced to give up his apartment and work as a labourer for a moving company. So, in contrast to his expected salary of around $75,000 annually with benefits, he was now earning less than $12,000 per year. The plaintiff further maintained that his “poverty and homelessness” has made him “socially isolated” and that he continues to suffer from post-traumatic stress disorder (PTSD) from the accident.
Justice Elaine J. Adair of B.C. Supreme Court tried the plaintiff’s case. She considered not only the evidence submitted by the plaintiff and his doctor, but also three medical experts retained by the defence. The first expert, a neurologist, said the plaintiff did sustain whiplash in the accident but that his symptoms “are now trivial” given that he’s currently working as a manual labourer.
The second expert, an orthopaedic surgeon, said his examination of the plaintiff was “unremarkable” and that it was less than 50% “likely” the plaintiff’s ongoing complaints were actually related to the accident. On cross-examination, the plaintiff attempted to pose a number of hypothetical questions to the orthopaedic surgeon, but Justice Adair said there “was no factual foundation for this series of questions.”
The final expert was a psychiatrist. He said he was “unable to tell” if the plaintiff met the “full diagnostic criteria for PTSD.” The psychiatrist noted the plaintiff “had a significant suspicious stance towards myself, healthcare and legal systems at [the] time of my assessment.” The expert further recommended the plaintiff receive a full “[p]sychological assessment including personality assessment to rule out any underlying personality disorder / traits contributing towards his current difficulties.”
Justice Adair noted that with respect to PTSD, it appeared to her that the plaintiff deliberately used terms that were “ready-made” for such a diagnosis. At the same time, he never actively sought treatment for PTSD. The plaintiff replied his family doctor never actually prescribed such treatment.
And this spoke to the larger problem with the plaintiff’s case in the judge’s mind. The “absence of any independent evidence” meant it was difficult for the judge to “infer some causal connection” between the accident and the plaintiff’s alleged injuries. That said, the medical evidence did show the plaintiff suffered whiplash, so Justice Adair awarded $35,000 in non-pecuniary damages for that reason. Additionally, she held the plaintiff was entitled to $2,475 in special damages to reimburse him for physiotherapy treatments he received following the accident.
B.C. judges do not want to hear a sob story. They want to see proof. Building a successful personal injury case takes time and expertise. The Vancouver car accident lawyers at the Preszler Law Firm can provide you with both. Contact us today to schedule a free consultation with a member of our legal team.