Canada: Proving Pain At Trial

Last Updated: January 14 2017
Article by Marc G. Spivak

In personal injury litigation, proving the fault of the other party is only half the battle;  proving the injury and damages caused by an event can often be more difficult.  Frequently personal injury lawyers are in the position of needing to convince a judge and a 6 person jury that the injured client in front of them is experiencing severe, chronic, and debilitating pain, despite the absence of any visible physical injury.

Objective tests may be used to demonstrate some kinds of injuries at trial. For example, X-rays show orthopaedic injuries; EMGs show nerve damage; and MRIs may show brain injury or smaller tears or disc herniations.  These tests are necessary and helpful in showing the cause of pain, but do not show the level or frequency of pain.  This needs to be proven.

Where the cause of pain is not something visible on one of these objective tests, proving pain becomes much more difficult. For example, with a soft tissue injury to the back, no X-ray or other visual illustration may be able to show the injury. The problem for an injured party's lawyer becomes finding a way to show a trier of fact that a person is experiencing the pain he or she claims to be.

Maintaining Credibility

Pain is subjective.  Accordingly, the credibility of the injured person and their complaints becomes paramount in proving pain.  Issues that may arise and may be a make-or-break factor in demonstrating an individual's credibility include the use of surveillance, whether the injured person has been forthcoming about prior health conditions, and expert evidence.

Surveillance is a tool regularly used by defendants to contest that an individual is injured. If surveillance shows a person doing something inconsistent with their reported abilities, it will be much more difficult to convince a jury that they are actually in pain.

On the other hand, surveillance can be a double-edged sword. Where surveillance of an injured person confirms the difficulties they are facing, for example if they are clearly limited in their activities or appear to be in pain during sedentary activities, this can support their credibility and go towards proving pain.

It may be tempting for an injured party to deny a past health problem out of concern that it not be confused with the pain they are presently experiencing.  However, most of an injured person's medical records will eventually be produced and, where these show a prior medical condition that has been denied, the credibility of the injured person will be eroded.

A competent personal injury lawyer will discuss these issues with the client on the first meeting, to allow the client to help them build their case and be in the best position to successfully prove that person's pain at trial.

Finally, an expert witness' evidence can also go a long way in supporting or damaging an injured person's credibility. Experts, such as doctors, regularly take steps during testing to establish whether an individual is accurately reporting their injury. If an expert suggests that an individual was faking or exaggerating their limitations during testing, the injured person's  credibility will be in question. An injured party should be made aware of the importance of making full effort during medical testing to help maintain their perceived credibility.

The experienced personal injury lawyer will use expert witnesses to bolster the injured party's credibility by confirming that there was no evidence of exaggeration or inconsistency and to persuade the judge and jury of the true nature of pain and disability caused by the event.

Tools for Proving Pain

In addition to being aware of and proactive about these potential hurdles to proving pain, an effective personal injury lawyer may use a variety of tools to help a jury recognize and better understand a person's subjective experience of pain.

Use of evidence of the treatments an injured person  has undergone can be useful in proving pain. Where the treatments are strenuous, unpleasant, or painful, presenting this evidence to a jury may help convince them that the individual must truly be in pain to have gone to those lengths.  Large and frequent painful injections into tender parts of the body are only done in desperation to reduce pain.  Visual aids such as diagrams, photos and videos of the procedure may convince the most sceptical of jurors.

Although there is no real scientific correlation between the extent and nature of a car crash, photos and videos of the scene and the crushed cars may help persuade a jury that the damages to the injured person must be significant. Photographs taken right after an accident of bruising to the related body parts of the injured person can be used to show the consistency of the area of complaints that may continue for years after an accident. While the soft tissue injuries of a person might be hard to grasp, seeing extensive bruising after an accident can help a jury understand the initial injury and pain that ultimately becomes chronic in nature.

To prove pain at trial an effective personal injury lawyer will need to be proactive and build the client's case from the start;  protect the client's credibility;  and use all the media tools available to demonstrate the most subjective part of a personal injury claim- a client's pain.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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