Having been a trial lawyer for some time specializing in motor vehicle accident claims, I have noted what, to me, is a deficiency in our legal system.
When assessing the amount of damages a person injured in a motor vehicle accident should receive, the trial judge will assess the testimony of the injured person. This is a crucial assessment as many soft tissue injuries, chronic pain cases, etc. cannot be objectively measured. The person suffering from the pain has to be believed that they have the pain they say, and that it is negatively impacting them to the degree they say.
For individuals with psychological difficulties, particularly where they pre-date the accident, this assessment becomes exceedingly difficult.
People with psychological difficulties often have trouble expressing themselves properly. They do not react well under pressure – and testifying in court is a pressure filled situation. They often perceive things differently, and have a different understanding of what people are saying and what doctors are telling them.
This makes them particularly susceptible to cross-examination. Even the most rudimentary cross-examination will create inconsistencies and statements which do not accord with documentary facts. This is not done deliberately but is a product of the underlying psychological difficulty the injured person is experiencing.
When assessing the credibility of such a person, the trial judge must be alive to the fact that the person has these difficulties. However, too often in these cases, I have seen where legitimately honest people who are struggling with psychological difficulties are judged to be not credible (ie deliberately misleading facts), with the effect being that they are not believed about their injuries, resulting in reduced compensation.
What should be happening is that the trial judge should be finding the injured person with psychological difficulties to be unreliable (ie making honest mistakes) as opposed to not credible. The trial judge could then look more liberally at the documentary and collateral evidence to judge what the injuries are more likely or not to be, and what the effect on the person’s life has more likely than not been.
Unless this is done, legitimately injured persons with psychological difficulties will be under-compensated, and defendants who injure people with psychological difficulties will pay less than they should.
Simpson Thomas & Associates has recently filed an application to the Supreme Court of Canada on this very issue, asking the court to hear argument on how people with psychological injuries who testify in personal injury cases should be assessed by the trial judge. It remains to be seen whether the Supreme Court of Canada will hear argument on this issue.
Article by Dairn Shane