Case Citation: McGlue v Girvan, 2024 BCCA 208
The case McGlue v. Girvan, out of the British Columbia Court of Appeal highlights a rare occurrence in which the trial decision was overturned on appeal. McGlue dealt with issues of objective, reliable and credible testimony and evidence when proving causation for chronic pain injuries suffered in a personal injury claim. The Plaintiff was "injured" in an Accident and claimed a myriad of injuries, both physical and psychological. The Trial Judge awarded the Plaintiff $631,341 for injuries but the Court of Appeal, overturned the award and dismissed the claim. It held that where credibility is a central and determinative factor in a case, an adverse finding of credibility against the Plaintiff will be fatal in determining causation.
The Plaintiff tendered four expert reports opining on exacerbation of his pre-existing soft tissue injuries, chronic pain, and new injuries to his left shoulder, major depression and opioid induced hyperalgesia stemming from the Accident. The central issue concerned whether the Plaintiff was reliable and credible and whether he was able to prove compensable injuries arising from the Accident. The Trial Judge concluded that she could not accept the Plaintiff's evidence at "face value" because his testimony was inconsistent and contradictory, and he had demonstrated a willingness to feign, exaggerate or embellish his injuries to obtain financial benefit; all of which was "fatal to his credibility and tainted the whole of his evidence at trial."
The Trial Judge also found that the Plaintiff's failure to provide complete and accurate medical histories to the experts who assessed him and his demonstrated willingness to feign or amplify injuries to obtain financial benefits undermined the weight that could have been given to the experts' opinions on both causation and the nature, extent and duration of the Plaintiff's injuries.
The Trial Judge, relying on "evidence as a whole", awarded the Plaintiff $631,341 for injuries. She relied primarily on expert opinions to support a finding of causation despite the opinions being tainted with unreliable self-reports and a lack of objective measures to substantiate their findings.
The issue on Appeal was whether in light of the Trial Judge's adverse credibility and reliability findings, the "evidence as a whole" was sufficient to ground the judge's ultimate finding of causation. The defendants argued that the judge erred by awarding damages in the absence of evidence and by relying on expert evidence without proof of the necessary underlying facts and assumptions.
The Court of Appeal held that the most important characteristic of the case—the nature of the injuries alleged by the Plaintiff, being an exacerbation of deteriorating pre‑existing soft‑tissue and psychological injuries, and an alleged new soft‑tissue injury to his left shoulder, placed the claim in a category for which his credibility was not only critical, but determinative. The expert opinions with respect to causation for the injuries relied primarily on the Plaintiff's self‑reporting.
Even though the Trial Judge recognized that the Plaintiff's credibility was the central and determinative issue, the Court of Appeal held that the adverse credibility findings were fatal to the Plaintiff's claims of injuries caused by the Accident given that there was no objective evidence to support his claim. The appeal was allowed and the claim was dismissed in its entirety.
Key Takeaway
This decision provides a strong basis to dispute a claim based on causation even if liability has been admitted. Thus, an unfavorable trial decision can still be overturned on appeal, providing hope for a different outcome.
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