140129
139265
Achieving-Justice

Are you a good liar?

“Bold faced lie!” exclaimed my daughter, Cassidy, during a game of One Night Ultimate Werewolf.

Lying is a feature of the game, where player identities are secret and clues are gathered before an execution.

Townsfolk struggle to identify and execute at least one werewolf. If not, the werewolves win.

Cassidy and her friends are pathetic liars. Giggling is a common “tell.” And it’s a struggle for them to come up with a lie that fits with known facts.

Their ability to identify a lie is also poor, even with the “tells.” So when a lie directly contradicts a known fact, they excitedly pounce on it.

I love that my children, and their friends, are pathetic liars. They’re clearly not practised. Though I’d appreciate a touch more of a skill at identifying the lies of others!.

How do judges do it? How does a judge figure out who is telling the truth and who is lying?

Do judges benefit from some divine insight into the hearts and minds of the witnesses appearing before them? 

Is there special training in identifying the “tells” of those not being entirely truthful? 

Will a more practised liar’s story carry the day and lead to injustice? 

A decision of British Columbia’s highest court (the British Columbia Court of Appeal) from more than half a century ago sheds light on those questions.

Unless you are a practised liar, you will appreciate the comments of Mr. Justice O’Halloran, in Faryna v. Chorny [1952] 2 D.L.R. 354 (B.C.C.A.), who identifies the problem of assessing

…the testimony of quick-witted, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skillful exaggeration with partial suppression of the truth.”

Mr. Justice O’Halloran goes on to identify an even more difficult puzzle, i.e. identifying when a witness has the honest intention to give accurate testimony, but is mistaken. No “tell” there! 

He put it as follows:

“Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial judge to say ‘I believe him because I judge him to be telling the truth,’ is to come to a conclusion on consideration of only half the problem.”

The judge specifically noted a lack of divine insight into the hearts and minds of witnesses.  

The solution, when faced with both skillful liars and those mistakenly believing they are telling the truth? 

Mr. Justice O’Halloran said that you compare the witness’s version of events against what’s likely to be true in the context of other known facts.

In his much more eloquent words:

In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”

It’s not about how good a liar you are. It’s about how well your story fits with what’s most likely to be true.

But if that was the only test applied by judges, all you would have to do is weave the best fitting story.

A much more recent judgment offers a number of additional factors that trial judges rely on to get to the truth.

I will share those factors in my next column.





Use ICBC claim for care

A close circle of friends and family can be a critically important support system in the early stages of recovering from a serious injury.

Patient care in our hospitals is second to none, but cannot reasonably provide the constant bedside care that a parent, spouse or friend can provide.

On release from the hospital, home-care nursing and housekeeping services go a long way, but family and friends can make a huge difference in between those scheduled visits.

And those lucky enough to have such a circle of support might prefer that as many services as possible be provided by loved ones rather than strangers.

Loved ones step up, asking nothing in return.

Each of us grew up with that culture, to varying degrees. Perhaps more so in more rural settings of small towns and farming communities, but it seems to be an integral part of the fabric of our society as a whole.

The services cost the injured victim nothing, but that doesn’t mean they come without a cost.

The friend or family member is doing work. The fact that it’s care-giving and “domestic” type work that our society has historically undervalued does not take away from that. 

And they often incur travel expenses and give up paid work to be able to provide the care and assistance. 

These services most certainly come at an “expense” to those who step up to provide them.

When the need for these services arises from a heart attack, disabling disease or an unavoidable injury, there is no concept of re-allocating that expense. 

But what about when that “expense” is completely avoidable, caused because an inattentive, negligent driver?

Should ICBC, the negligent driver’s insurance company, receive the benefit of those services without compensation?

Our laws have developed to require a negligent driver to fully and fairly compensate their victim for all losses, including the “expense” of friends and family members providing unpaid services.

It’s called an “In-trust claim.”

A recent statement of the law regarding these claims can be found in Huang v. Canadian National Railway, 2018 BCSC 1235 where the court at paragraph 527 lists the factors relevant to assessing this aspect of a claim:

  • (a) the services provided must replace services necessary for the care of the plaintiff as a result of a plaintiff's injuries;
  • (b) if the services are rendered by a family member, they must be over and above what would be expected from the family relationship (here, the normal care of an uninjured child);
  •  (c) the maximum value of such services is the cost of obtaining the services outside the family;
  • (d) where the opportunity cost to the care-giving family member is lower than the cost of obtaining the services independently, the court will award the lower amount;
  • (e) quantification should reflect the true and reasonable value of the services performed taking into account the time, quality and nature of those services. In this regard, the damages should reflect the wage of a substitute caregiver. There should not be a discounting or undervaluation of such services because of the nature of the relationship; and, 
  • (f) the family members providing the services need not forego other income and there need not be payment for the services rendered.

As with all other aspects of an ICBC claim, the “in-trust” aspect must be proven.

Care must be taken to “preserve the evidence” of what services were provided by whom, the amount of time spent providing each service and the reasonable necessity of the services.

An example of where this aspect of a claim was pursued, but the court concluded that the evidentiary burden was not discharged, can be found in paragraphs 234 through 241 in Lensu v. Victorio, 2019 BCSC 59.

Giving of yourself to help another, expecting nothing in return, is a beautiful thing that should be encouraged. When, in effect, your gift is to ICBC or another liability insurance company, it is fair and reasonable to ensure the “expense” of those gifts is fairly allocated.



Looking for honest justice

Two cones of silence had to be removed for us to hear Jody Wilson-Raybould’s testimony. 

As Minister of Justice, cabinet privilege silenced her communications with cabinet colleagues. As Attorney General, she was the government’s lawyer and bound by solicitor-client privilege.

Cones of silence get in the way. Cabinet privilege is a brick wall blocking increased government transparency. And solicitor-client privilege can seem like a tool used by bad people to subvert justice.

I have no experience with cabinet privilege, but I do have direct experience with the other, most extensively in the context of personal injury cases.

At the heart of solicitor-client privilege is the concept that people must be able to speak candidly with their lawyers so that their interests can be fully represented (R. v. McClure, 2001 SCC 14, paragraph 2).

Privilege starts with the very fact that you have consulted a lawyer.

Most consulting with me for the first time are almost apologetic. They bend over backward to explain that all they want is what’s fair, as if the very act of consulting with a lawyer about an ICBC claim implies they’re trying to screw the system.

If they’re worried about my perception, how mortified must they feel about family, friends or co-workers learning about the consultation?  Or their ICBC adjuster, because a lawyer consultation means you are not blindly trusting whatever Kool-Aid the adjuster is pouring.

No one will find out that a lawyer consultation occurred unless you tell them. The lawyer won’t give the ICBC adjuster a call to find out about the case, nor take any other steps that would reveal the consultation occurred, unless you instruct them to.

The same goes for actually retaining a lawyer. You can retain and consult regularly with a lawyer on a completely confidential basis.

Injured victims usually want me to tell ICBC right away that I am involved, to end the ongoing stress of dealing directly with an adjuster.

But if ICBC is being “generous,” providing more than minimally required benefits, it is sometimes best to keep the retainer confidential until the inevitable time when the “generosity” ends.

And yes, everything you tell your lawyer is confidential. But that doesn’t mean you can use a lawyer as a hired gun to subvert justice by pursuing a fraudulent claim on your behalf.

Lawyers are bound by important ethical obligations.

Here are just a couple applicable quotes from British Columbia’s Code of Professional Conduct:

  • “A lawyer should not aid, counsel or assist any person to act in any way contrary to the law” (2.1-1(a)); and
  • “A lawyer should not attempt to deceive a court or tribunal by offering false evidence or by misstating facts…” (2.1-2(c)).

Ethical lawyers will refuse to take on a claim they know to be fraudulent.

Apart from ethics, it would be unwise in the extreme to take on such a case. The civil justice system is built to get to the truth.

You might get away with lying in your dealings directly with ICBC, but carrying that through with a lawyer and lawsuit is going to end badly, particularly for the lawyer who works on a contingency fee basis while fronting thousands of dollars of their own money to the expense of litigation.

In the over 20 years I’ve been doing this work, no one has ever asked that I pursue a fraudulent claim. But, thankfully, in only a small handful of cases, I’ve discovered dishonesty part way through.

I must keep the information I learned, uncovering the dishonesty, strictly confidential. And I cannot disclose my reason for “firing” clients, but I will stop acting for them.

But over the course of handling a claim, all sorts of facts come up. Some are bound to be unhelpful to the case.

For example, a client whose back was injured in a crash sustains some other back injury the following year, but the injury is in a different area that completely heals.

I’ve had clients ask whether the medical records related to that other back injury must be disclosed to ICBC.

They’re not trying to be fraudulent. They just don’t want to be cheated, because ICBC will undoubtedly argue that any ongoing back problems were caused by the other injury, not the crash.

I explain that the rules of our civil justice system require disclosure of relevant documentation, even if it might hurt your case. And they include an event called an Examination for Discovery where you must answer questions posed while under oath.

I tell my clients that that I will stop acting for any client who is not forthright during an Examination for Discovery or instructs me not to disclose relevant documentation.

But I do so with reassurance that we can deal with unfair ICBC arguments. What we cannot deal with is an attack on credibility that comes from ever being less than forthright.

As our mamas told us, honesty is always the best policy.





ICBC capping victims

The rights of those injured in collisions are about to change.

Negligent drivers causing the collisions will be rewarded.

Rewards include increased employment disability benefits and complete (instead of the current partial) coverage for most care expenses.

Innocent victims will also receive increased benefits. But since 100 per cent of income losses and expenses must be paid at the time of settlement, those benefits are just a higher down payment on what ICBC will have to pay anyway.

Innocent victims will actually be penalized because their right to compensation for “non-pecuniary losses” will be capped.

Non-pecuniary losses are the non-financial ways you are impacted by an injury.

Your injuries might cause you to miss work for a time and cost money to treat. Those are financial losses.

Non-financial losses include the unpleasant experience of discomfort and pain. And the impact those symptoms have on your day-to-day activities.

They include psychological symptoms as well, such as a lowered mood and irritability that can go hand in hand with physical symptoms. 

Thankfully, most injured victims enjoy a complete recovery. They might endure a wretched few weeks or months, but the discomfort and pain resolves and they return to the life they enjoyed before the collision.

I call that a temporary injury, because it ends. It is not permanent. 

In the great scheme of car-crash injuries, the temporary ones might be referred to as “minor.” Though I caution you against suggesting to anyone enduring months of pain, stiffness and headaches that they sustained a minor injury.

For collision injuries occurring on or after April 1, 2019, non-financial loss compensation for those temporary injuries will be capped at $5,500 (the “Cap”).

The Cap is established by a government regulation called the “Minor Injury Regulation.”

But when you look at how the government has defined a “minor injury” in the legislation, you will see that they are applying the Cap to injuries going far beyond what any reasonable person would label as “minor.”

If you sustain an injury referred to as a “sprain,” — an injury to ligaments — it is a “minor injury” unless all the fibres of an injured ligament are torn.

A “strain” — injury to muscles — is a “minor injury” unless all the fibres of an injured muscle are torn.

All whiplash associated disorders are “minor injuries” unless they include a spinal fracture or “decreased or absent deep tendon reflexes, deep tendon weakness or sensory deficits, or other demonstrable and clinically relevant neurological symptoms”.

Pain syndromes, psychological and psychiatric conditions and jaw joint injuries are “minor injuries” as well.

All of those injuries are “minor injuries” unless they result in a “serious impairment” or a “permanent serious disfigurement.”

To qualify as a “serious impairment,” it must indeed be serious, resulting in the “substantial inability” to perform the essential tasks of your employment/occupation/profession, or a training/education program you are enrolled in or accepted for enrolment.

And it must last longer than 12 months without an expectation of ever substantially improving.

I will give you an example.

You suffer whiplash injuries, a shoulder injury that tears some, but not all, fibres of ligaments and muscles as well as whiplash-related headaches.

You are initially unable to work, but with months of therapies and a graduated return to work program, your symptoms settle down and you build up your strength to the extent you are able to return.

But you continue to suffer from headaches, neck pain and shoulder restrictions that will never completely resolve. Those ongoing symptoms restrict you from ever returning to your previously active lifestyle. And leads to depression.

That’s a “minor injury” for crashes occurring on or after April 1, 2019.

Interested in looking at the legislation yourself? Look at the “Part 7 – Minor Injuries” section of the Insurance (Vehicle) Act. And the Minor Injury Regulation.



More Achieving Justice articles

137622
About the Author

Paul Hergott began practicing law in 1995, in a general litigation practice. Of the various areas of litigation, he became most drawn to, and passionate about, pursuing fair compensation for injured victims. This gradually became his exclusive area of practice.

In 2007, Paul opened Hergott Law, a boutique personal injury law firm in the Central Interior, serving personal injury clients from all over British Columbia. Paul’s practice is restricted to acting only for the injured victim, never for ICBC or for other insurance companies.

Paul became a weekly newspaper columnist in January of 2007, when his first column entitled “It’s not about screwing the Insurance Company” was published. 

Please feel free to email or call Paul (1.855.437.4688) with legal issues you might like him to write about in his column, or to offer your feedback about something he has written.

Email:   [email protected]
Firm website:  www.hlaw.ca
Achieving Justice Legal Blog:  http://www.hlaw.ca/category/all-columns/
One Crash is Too Many Road Safety Campaign: www.onecrashistoomany.com
Google Plus:  https://plus.google.com/+HlawCanada/posts
Facebook:  www.facebook.com/personalinjurylawfirm
Twitter:   twitter.com/Hergott_Law



135522
The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

Previous Stories





139994