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The Importance of Plaintiff Credibility in Determining Causation
A recent Nova Scotia Supreme Court case, Gale v Purcell, 2018 NSSC 319, demonstrates how the credibility of a plaintiff can play a central role in assessing causation in a motor vehicle accident.
On September 19, 2006, the Plaintiff, Angela Marie Gale (“Gale”) sustained injuries in a motor vehicle accident (“2006 MVA”). On March 23, 2010, Gale was involved in another motor vehicle accident in which the Defendant, George D. Purcell (“Purcell”), rear—ended her vehicle (“2010 MVA”). Gale sought damages from Purcell, who claimed that all of Gale’s injuries were originally caused by the 2006 MVA.
In order to address the parties’ claims, the court had to decide whether the 2010 MVA was the original cause of Gale’s injuries or if the 2010 accident merely exacerbated the injuries that were caused by the 2006 MVA.
Whether Gale’s Injuries were caused by the 2010 MVA
Relying on the “but for” test articulated in Clements (Litigation Guardian of) v Clements,  2 SCR 181, the court held that Gale lacked credibility and as a result, failed to prove that the 2010 MVA was the cause of her ongoing injuries and pain.1
In Gale’s testimony, she took great care in distinguishing injuries that she thought were caused by the 2006 MVA and those that were caused by the 2010 MVA.2 She also downplayed the ongoing effects of the 2006 MVA and emphasized the effects of the 2010 MVA.3 Additionally, Gale contended that the injuries caused by the 2010 MVA rendered her unable to work full-time as a dental receptionist.4
In contrast, Gale’s medical records suggested the following: that all of Gale’s injuries could be traced back to the 2006 MVA, that she was still suffering from physical and mental hardships that were caused by the 2006 MVA, and that she was able to return to work as a dental receptionist soon after the 2010 MVA.5
Although Gale may have believed that the 2010 MVA was the root cause of all her pain issues, the court held that a witness’s belief in what is true is insufficient to establish their credibility. The court relied on a statement made by O’Halloran JA in Faryna v Chorny,  2 DLR 354,  BCJ No 152 (CA):
The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions.6
The totality of the evidence suggested that the 2010 MVA exacerbated injuries that were originally caused by the 2006 MVA.
Whether the exacerbation of injuries was a minor injury
After deciding on causation, the court assessed whether the exacerbation of injuries was a minor injury. The court relied on the definition of “minor injury” as it was defined at the time of the 2010 MVA in s. 113B of the Insurance Act, RSNS 1989, c 231 (“Act”). The judicial interpretation of s. 113B in Farrell v Cassavant, 2009 NSSC 233 yielded the following questions that must be answered in determining whether a plaintiff has suffered a minor injury:
- Did the plaintiff suffer a personal injury?
- If so, did the personal injury result in a permanent serious disfigurement?
- Did the personal injury result in a permanent serious impairment of an important bodily function caused by a continuing injury which is physical in nature?
- Did the personal injury resolve within twelve months following the accident?7
While Gale’s exacerbated injuries were personal in nature, they did not result in a permanent disfigurement or a permanent serious impairment of an important bodily function. The exacerbated injuries did not interfere with regular employment and her injuries had resolved within 12 months following the 2010 MVA, as evidenced by the fact that Gale was able to travel and work as a dental receptionist soon after the 2010 MVA.
Entitlement to damages
As the court had decided that the exacerbated injuries were minor, Gale’s non-pecuniary and general damages were capped at $2,500, the amount of the minor injury cap in place at the time of the 2010 MVA.8 The court also held that Gale had suffered a direct economic loss by the impairment of her ability to perform household duties and she was awarded $10,000 for the loss of valuable services.9
Lessons for Insurers
Insurers should look at the totality of evidence submitted by a plaintiff and assess whether there are any contradictions therein that could impugn the plaintiff’s credibility. Contradictory evidence can serve to prove that the plaintiff has not established causation, or that the plaintiff’s injuries are minor and are therefore subject to the minor injury cap set forth in the Automobile Accident Minor Injury Regulations, NS Reg 94/2010.
This article was written with assistance from Trevor Wong, an Articled Clerk in Cox & Palmer’s Halifax office.
1 Gale v Purcell, 2018 NSSC 319, at paras 16-20
2 Ibid, at para 149
3 Ibid, at para 153
4 Ibid, at para 158
5 Ibid, at para 82
6 Gale v Purcell, 2018 NSSC 319 at para 170
7 Ibid, at para 178
8 Ibid, at para 194
9 Ibid, at para 203