Carmen Hamilton is a lawyer practising in Vancouver. Reasonable Doubt appears on Straight.com on Fridays. You can send your questions for the column to its writers at email@example.com Reasonable Doubt: Want that big ICBC payout? Try telling the truth
by Carmen Hamilton on April 24th, 2015 at 11:57 AM https://www.straight.com/news/438606...-telling-truth
We’ve all heard about those big personal injury settlements: your coworker allegedly “knows someone” who just stayed at home for nine months faking a neck injury and got $250,000; or you read about the woman who received a jury award of $12 million following three minor fender-benders in a parking lot. (What you may not have heard was that the $12 million award was overturned by the Court of Appeal two years later.)
Reasonable Doubt: Sometimes seeking justice is bad for your health
It’s these sorts of anecdotes and media reports that perpetuate the misguided belief that it’s easy to work the system and have the disingenuous minority rubbing their little paws together and thinking that any little rear-ender is their opportunity for a six-figure pay-out.
Contrary to common misconceptions, however, that “auto lotto” isn’t the easy win some think that it is. For those injured individuals who have actually been through personal injury litigation, they know that proving their personal injury damages can be difficult, and litigation is lengthy and often spans over years. That’s right: years. For those malingerers out there thinking that you can fake a limp and set yourself up for a windfall, don’t start picking out your new Lexus just yet.
Plaintiffs in personal injury cases have to prove their losses; they have to prove that they sustained an injury and must be able to quantify what it cost them. This can be lost wages (both past and future), medical expenses, cost of future care, et cetera. In addition to these quantifiable losses, plaintiffs can seek compensation for pain and suffering.
Proving one’s losses isn’t easy and doesn’t come cheap. You might need an expert witness to help prove your case—someone who can testify that the accident that you were in actually caused your injury or that you sustained some sort of imperceptible damage, like a psychological or neurological injury.
These sorts of expert medical opinions cost thousands, and if you need that expert to testify at trial, you’re probably looking at a bill in excess of $10,000.
For malingerers, this is the point when the stakes get high. All of a sudden your ruse needs a serious outlay of funds and it’s going to be a gamble. While personal injury lawyers routinely front these sorts of disbursements for their clients, you’re going to have to convince a lawyer that you’ve got a case worth taking. If s/he doesn’t believe that you’re credible, odds are that they won’t want to invest the time and money into a case that’s not going to pay out.
In the meantime, while you’re sitting at home watching Judge Judy and thinking you’re a genius, defence lawyers are pulling out all of the stops. They’re getting your medical records from the last few years. They’re getting your employment file and your tax returns. They’re looking to see if you’ve sued anyone else. They’re interviewing your neighbours, your coworkers…maybe even your ex-girlfriend. And that car parked down the street? Better keep up the limp, because it might be a private investigator collecting surveillance footage.
Maybe you’re thinking that it will be easier to fake a psychological injury, or depression. In that case, get ready to get personal. Be prepared to be cross-examined on your whole life, from your financial problems to work stress or even your most recent break-up. I’ve even seen cases where a woman’s abortion became a relevant issue in her personal injury claim. See Kevin Yee’s article on the extent of information that can be sought in personal injury suit.
From the get-go, a plaintiff’s credibility will be the key to their success in a personal injury case. It doesn’t take long for defence counsel to spot the frauds and weed out the phonies, but for the bulk of those legitimately injured individuals, what can they do to make sure that they are being properly compensated for their injuries? What makes one plaintiff more credible than the next?
Judges and juries are more likely to be swayed by plaintiffs that are forthcoming and don’t exaggerate. Medical evidence is scrutinized to make sure that it is consistent with the story that the plaintiff is presenting. Corroborating evidence (for instance, friends, and family who can speak to your emotional state before and after the accident) will bolster not just your credibility (your truthfulness), but the reliability of your evidence (perception, recollection, narration, and sincerity), a difference that is explained well in this case.
Plaintiffs have to convince a judge or jury that they are actually hurt, and if they exaggerate or overstate in their testimony, everything else they say—even if it’s true—won’t be as believable. In one frequently quoted case, the judge said: "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. (Le v. Milburn,  B.C.J. 2690, para 2)"
Litigation is time-consuming, expensive, and incredibly stressful. A plaintiff’s credibility is under constant scrutiny, and the process is taxing even for the majority of plaintiffs that are truthful and are seeking compensation for their legitimate injuries. For those would-be malingering plaintiffs that think they can fake an injury and turn a parking lot rear-end collision into a vacation home on a lake: it’s not going to be a walk in the park, and odds are that you’re not going to be successful.