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Vancouver ICBC Car Accident Clinical Records and Credibility

Our Vancouver ICBC car injury lawyers often explain to our clients who have suffered a Vancouver ICBC car accident Injury, that ICBC defence lawyers will seek to attack their credibility and say they have changed their stories about their car accident injury symptoms. The defence lawyer will also often look at brief medical notes of their doctors and again argue that the Plaintiff’s complaints listed in the clinical records were no where near as fully described by the injury victim on the stand at the trial of their ICBC car accident injury case.

What If The ICBC Car Injury Victim Gives Stories On Injuries That Differ Over Time?
Vancouver ICBC Car Accident Clinical Records and Credibility cases need thorough preparation by experienced counsel such as the lawyers at MacLean Personal Injury.

In Edmondson v. Payer, 2011 BCSC 118, which was upheld by our highest court in 2012 BCCA 114, the court was critical of defence lawyers unfairly seizing on minor variations by the victim in the details of their injuries to different doctors and on the witness stand at their ICBC Car Injury trial:

[31] In Diack v. Bardsley (1983), 46 B.C.L.R. 240, 25 C.C.L.T. 159 (S.C.) [cited to B.C.L.R.], aff’d (1984), 31 C.C.L.T. 308 (C.A.), McEachern C.J.S.C., as he then was, referred to differences between the evidence of a party at trial and what was said by that party on examination for discovery, at 247:
… I wish to say that I place absolutely no reliance upon the minor variations between the defendant’s discovery and his evidence. Lawyers tend to pounce upon these semantical differences but their usefulness is limited because witnesses seldom speak with much precision at discovery, and they are understandably surprised when they find lawyers placing so much stress on precise words spoken on previous occasions.

[32] That observation applies with even greater force to statements in clinical records, which are usually not, and are not intended to be, a verbatim record of everything that was said. They are usually a brief summary or paraphrase, reflecting the information that the doctor considered most pertinent to the medical advice or treatment being sought on that day. There is no record of the questions that elicited the recorded statements.

[33] When statements of a party are relied on for the truth of their content, the authors of Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 3d ed. (Markham, ON: LexisNexis Canada, 2009) point out at paragraph 6.398 that one rationale for the admissibility of such statements is that “it is always open to the party to take the witness box and testify either that he or she never made that admission or to qualify it in some other way.” The authors also emphasize at paragraph 6.413, that the whole of a statement must be put into evidence:
Thus, if an admission contains statements both adverse and favourable to a party and if an opponent tenders it, he or she may thereby be adducing evidence both helpful and damaging to his or her cause.

[34] The difficulty with statements in clinical records is that, because they are only a brief summary or paraphrase, there is no record of anything else that may have been said and which might in some way explain, expand upon or qualify a particular doctor’s note. The plaintiff will usually have no specific recollection of what was said and, when shown the record on cross-examination, can rarely do more than agree that he or she must have said what the doctor wrote.

[35] Further difficulties arise when a number of clinical records made over a lengthy period are being considered. Inconsistencies are almost inevitable because few people, when asked to describe their condition on numerous occasions, will use exactly the same words or emphasis each time. As Parrett J. said in Burke-Pietramala v. Samad, 2004 BCSC 470, at paragraph 104:
… the reports are those of a layperson going through a traumatic and difficult time and one for which she is seeing little, if any, hope for improvement. Secondly, the histories are those recorded by different doctors who may well have had different perspectives and different perceptions of what is important. … I find little surprising in the variations of the plaintiff’s history in this case, particularly given the human tendency to reconsider, review and summarize history in light of new information.

ICBC Needs to Be Fair
The judges have every right to believe witnesses who have minor variations in their recounting of their injuries over many months. Frankly, it is just common sense and we always explain this idea to Judge’s on your behalf. Keeping very detailed record sod your symptoms and getting the best medical treatment advice and following it is also of paramount importance.

Our Vancouver ICBC Car Accident Clinical Records and Credibility lawyers are standing by to meet with you for free to discuss your ICBC car accident case. Simply call us at 604-602-9000 so we can get you on the path to recovering your health and the most money possible for your injuries. Call us now 604-602-9000 deadlines apply.

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