Case citation: Artindale-Eeles v. Mercer, 2024 ABKB 233 

In the most recent personal injury decision out of Alberta related to a motor vehicle accident, the Plaintiff’s credibility was deemed unreliable and inconsistent by the Court. While this finding had an impact on the overall damages award (as she was seeking $489,804 in damages but only received $166,730), the Plaintiff was still awarded $88,000 in general damages (for chronic soft tissue pain and related emotional distress). Further, she suffered from multiple pre-existing conditions including chronic pain in her neck and shoulders, headaches, PTSD, depression and poor sleep but the Court deemed her a “thin skull” victim. She was also involved in multiple falls after the motor vehicle collision that did not appear to have an impact on her general damages.

This decision demonstrates that even when credibility issues are present and a plaintiff suffers from multiple pre-existing conditions, defendants and insurers will have difficult battle with general damages. However, the Plaintiff’s credibility here (or lack of credibility) did have a significant impact on her other heads of damages.
 

Background

The Plaintiff was involved in two collisions on April 9th, 2010, but only brought legal action for the second collision. The first collision resulted from the Plaintiff’s vehicle slipping on ice and colliding with a van in front of her at a low speed. She claimed she suffered no injuries from this collision despite the front end of her vehicle sustaining obvious damage. While the Plaintiff was waiting for the RCMP to arrive to the scene of the first collision, her vehicle was actually struck from behind by the attending RCMP vehicle resulting in her vehicle spinning out. She was subsequently transported to the hospital where she reported injuries to her cervical spine, clavicle and right knee. She was later diagnosed with whiplash and a strain to her left shoulder and upper back.

Credibility

The Plaintiff’s credibility was repeatedly questioned at trial due to inconsistent testimonies, exaggerations, and omissions. She often contradicted herself, exaggerated her injuries, downplayed pre-existing conditions, and omitted crucial information to medical professionals. Notable examples include her contradictory statements about braking before the collision, which differed from her RCMP report, insurer statements and medical records. The Court found this unnecessarily defensive and truth-distorting.

Notably, the Plaintiff exaggerated the collision's severity to health professionals. The Plaintiff failed to inform one health care provider about significant pain and nerve inflammation experienced before the collision, leading to incomplete medical assessments. She also downplayed the severity of her PTSD, depression, chronic pain, and insomnia, providing a distorted picture of her health status. Her initial denial of a 2011 fall further undermined her credibility. Lastly, she inaccurately reported her pain medication usage, claiming higher consumption than indicated by her records. These examples and many other contradictions raised serious doubts about her reliability.

General Damages

Despite these credibility issues, the Plaintiff’s still received $88,000 in general damages. The Court relied on five other chronic pain cases in assessing her general damages despite credibility not being at issue in these other cases. 

Past Loss of Income

The Plaintiff was 49 at the time of the collision and was employed by the Canadian Forces Base as a Clearing Services Supervisor. She had retired by trial but argued she was forced into early retirement and had reduced her hours prior to retiring due to the collision.

Further, the Plaintiff argued she was planning on working part-time after retirement but could not because of the collision. She gave evidence that she made two inquiries with a grocery store about working part-time after retirement but the Court found the evidence was insufficient to support this argument.

However, the Court accepted the collision caused a reduction in the Plaintiff’s work hours prior to retiring. The Court assessed the Plaintiff's past income loss by analyzing her work history, employment records, and expert testimony. The expert report highlighted inconsistencies in her reported work hours and actual income, showing significant variability with an average of 1,700 hours per year, rather than the standard 2,086 hours.

The Court found the Plaintiff’s testimony about working 40-hour weeks unreliable, due to discrepancies in employment records and sick leave usage. Adjustments were made to expert report calculations to correct inaccuracies and reflect the likelihood that the Plaintiff would not have consistently worked full-time hours without the collisions, applying a 5% reduction to lost wages. The Court also considered pre-existing health issues that contributed to her reduced work capacity. Claims for early retirement and post-retirement part-time work loss were dismissed due to insufficient evidence.

Past Loss of House Keeping Capacity

The Plaintiff was rewarded $3,200 for past loss of housekeeping capacity. The Plaintiff provided exaggerated and inconsistent information about her injuries and limitations. She falsely claimed she took sick leave only for surgeries and exaggerated her driving restrictions which was contradicted by evidence showing she resumed driving earlier than claimed. Her self-reported restrictions which were prepared years later without contemporaneous notes, further reduced their reliability. Expert evaluations did not provide specific pecuniary costs, and no replacement services were used. Despite some difficulties with heavy chores, the Plaintiff could perform most routine tasks, and her part-time status accommodated the additional time needed for cleaning. 

In-Trust

The Court awarded $5,780 for services provided by family members, including 75 hours of driving ($1,650) and 165 hours of household assistance ($3,630) by the Plaintiff’s husband plus $500 for other family support.

Future cost of care

The future cost of care was set at $12,500 including housekeeping and potential future needs. The Court found many claims speculative and unreliable as the Plaintiff admitted she would not pursue several recommended treatments. The physiotherapist’s report also failed to differentiate between pre-existing conditions and collision-related needs.

Special damages

The Plaintiff claimed $21,000 for various expenses but was awarded $11,600 due to credibility and reliability issues. For medications, she received $1,100, as some costs were for pre-existing conditions and the evidence was generic and poorly detailed. For physiotherapy, $2,000 was awarded for sessions between April 2010 and May 2012, with reductions due to incomplete records and her failure to follow recommended treatments. Travel expenses were set at $8,500, excluding claims for unrelated appointments and overstated travel needs. The lack of precise, credible evidence significantly reduced the awarded amount.

Conclusion

This matter highlights the impact of credibility on the assessment of damages in personal injury claims. Inconsistent testimony, exaggerations, and omissions led the Court to adopt a cautious and conservative approach. While she received $88,000 in general damages, her claims for her other heads of damages were substantially reduced due to credibility issues.