Canada: Personal Injury; Motor Vehicle Accidents; Evidence; Witness Reliability ~ With Counsel Comments

Last Updated: November 14 2017
Article by Field LLP

Blicharz v. Livingstone, 2016 ABCA 157 Areas of Law: Personal Injury; Motor Vehicle Accidents; Evidence; Witness Reliability

~Trial judges have the discretion in civil cases to decide whether or not proceedings must be interpreted, and they must balance the parties' rights to procedural fairness in doing this~

BACKGROUND

The Appellant, Lucyna Blicharz, claimed damages for personal injuries arising from five separate motor vehicle accidents. She was represented by three different lawyers during the course of proceedings, but was self-represented at trial and on appeal. Her first language is Polish and she had an interpreter present throughout trial. He did not provide simultaneous interpretation, but was rather present in case the Appellant needed help framing a question or understanding what was said. The interpreter was little used, as the Appellant conducted the trial in English. The Appellant alleged injuries including pain in the back, neck, chest, shoulder, leg and arm; headache; bladder and bowel irritation; fibromyalgia; depression; sleep disorder and post-traumatic stress disorder. There was a suggestion that the Appellant contracted leukemia as a result of the accidents. She had sustained workplace injuries before the first of the accidents, and after the fifth accident she was a passenger in a motor vehicle that hit a deer. The Appellant advanced claims for loss of income and cost of care. She led evidence from several medical experts, including a family doctor, a physiotherapist, a neurosurgeon, a urologist, a psychologist, a counsellor, and a professor of health sciences. The Respondents also led evidence from several medical experts, including a neurologist and an expert in pain medicine. The trial judge noted that the Appellant's family doctor relied on her description of her injuries, but that the tests he ordered did not substantiate her complaints. There was no indication that her physiotherapist considered her pre-accident history in forming an opinion. Based on this evidence, the judge concluded that it was difficult to accept the opinions of the family physician and physiotherapist. The Appellant declined to call her leukemia expert at trial, advising the court that in the expert's opinion the leukemia was not connected to the accidents. The trial judge also found that one of the Appellant's experts did not know why the Appellant was having bladder and bowel issues, and another said his assessment of her had been limited by her refusal to go for an important test. The Respondent's neurologist concluded that the Appellant had a minor injury of a whiplash type resulting from the first accident. None of the Respondents' experts considered that the Appellant had any serious injury from any of the accidents. The trial judge concluded that there were a number of inconsistencies in the Appellant's evidence which were not caused by language difficulties but rather out of a desire to gain some advantage. Based on his review of the evidence, the Appellant lacked credibility and was an untrustworthy witness. The trial judge awarded general damages of $3,500 for the first and last accidents, relying on evidence from the Respondents' pain expert that those accidents produced a whiplash type of injury which would have resolved in a few weeks. He awarded $500 for medications and $4000 for loss of income arising from the fifth accident. After judgment was rendered, the Appellant applied to reopen the trial to call more evidence and to have simultaneous interpretation. This was dismissed.

APPELLATE DECISION

 The appeal was dismissed. The Appellant argued that the trial judge breached her right to a fair hearing by failing to allow simultaneous translation from English to Polish. Trial judges have the discretion in civil cases to decide whether or not proceedings must be interpreted, and they must balance the parties' rights to procedural fairness in doing this. The trial judge was the one who suggested the Appellant bring an interpreter with her so that she could request information if necessary during trial. The judge also assisted the Appellant by leading some of her expert medical evidence. The Court of Appeal was satisfied that the judge took the appropriate steps to ensure a fair trial. There was no merit to the Appellant's argument that a reasonable apprehension of bias arose from the fact that the trial judge conducted a pre-trial conference and then presided at the trial, nor from comments he made relating to the leukemia expert's proposed evidence. The trial judge correctly applied the law of negligence and causation, and did not misapprehend the evidence. The documents the Appellant sought to introduce through re-opening the trial were either not relevant or would not have reasonably affected the result.

Counsel Comments

Blicharz v. Livingstone, 2016 ABCA 157

Counsel Comments provided by Don Dear, Q.C. and Sue Remmer, Counsel for the Respondents

"In many respects, this case was an unremarkable car crash trial involving 5 accidents with a self-represented Plaintiff. There were however a few items of note in that the Learned Trial Judge:

  • Found that in Canada there is no inherent right of a civil litigant to a fully translated trial in their mother tongue.
  • Made scathing findings concerning the credibility of the Plaintiff. He also found that the Plaintiff's family doctor and her chiropractor lacked credibility as they acted as advocates for the Plaintiff.
  • In effect ignored the decision of Canada Pension Plan to provide the Plaintiff with disability benefits. However the Court did reference the Plaintiff's self-representation before that body in assessing her credibility and skills in communicating in English.
  • Found that 3 of the 5 accidents resulted in no damages whatsoever and that, if not remarkable, was quite unusual in this environment.
  • Did not apply the Minor Injury Regulation and instead simply found that the injuries were "very minor" and he came to his own conclusion on damages without reference to the legislation.

However, the most fascinating part of this litigation was the fact that the five Defendants in this case together offered the Plaintiff over $1/2 million prior to trial to settle these claims and the Plaintiff was awarded a global $11,500 at trial. At the costs hearing following trial the Trial Judge awarded the Defendants $325,000. The Plaintiff also has a judgment against her by one of her three former counsel for over $100,000 and even a judgment against her for almost $40,000 resulting from a high interest rate loan she took against the proceeds of the litigation. The failure to settle potentially had million dollar consequences."

Originally published by OnPoint Legal Research | Take Five

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