B.C. lawyer exaggerated extent of injury from car accident: Court of Appeal

Trial judge's finding that health condition would have disabled her in any event was reasonable

B.C. lawyer exaggerated extent of injury from car accident: Court of Appeal

The B.C. Court of Appeal has found that a claimant in a personal injury case overstated the extent and degree of her injuries, and that her pre-existing mental illness would have disabled her in any event.

In Jenkins v. Casey, 2022 BCCA 64, Kathleen Ann Jenkins was a lawyer with history of chronic depression and social anxiety disorder. She was injured in a car accident in May 2015.

She was dismissed by her employer after the car accident. When she eventually found new employment, she alleged that her earning capacity was permanently diminished because of chronic pain in her back and neck and by headaches and fatigue, which she attributed to the car accident. 

The trial judge found that much of Jenkins’ post-accident loss of income earning capacity was not caused by the accident. In fact, the judge concluded that Jenkins exaggerated her claims and minimized her pre-accident health issues while overstating the severity of the accident. The judge also found that Jenkins’ evidence was affected by financial need. She was living beyond her means and desperate for money before the accident, and such pressure intensified after she was dismissed from her job.

Jenkins argued that the judge committed an error in assessing her credibility and placing an inappropriate burden upon her to prove that her pre-existing condition would not have disabled her in any event.

Jenkins further asserted that the judge’s negative credibility assessment was based upon misapprehension of the evidence, unfounded inferences and unreliable or collateral evidence. However, the court found that the Jenkins’ allegations failed to overcome the judge’s critical findings, which were supported by the record and evidence.

For instance, Jenkins argued that the judge committed an error in concluding that she portrayed herself to expert medical witnesses as someone who was physically and socially active prior to the accident. She asserted that she did not mislead experts when she described her pre-accident activities. Nonetheless, the court found sufficient evidence to support the judge’s conclusion that Jenkins was not completely honest with the experts with respect to her pre-accident fitness. 

Further, the judge found that Jenkins was not in fact suffering the degree of pain and consequent disability that she claimed. The judge also attributed some of Jenkins’ symptoms to her pre-existing condition and the termination from her job following the accident.

The judge said, “had the accident never occurred, the stress of the termination may well have triggered the headaches and recurring depressive symptoms.”

Jenkins argued that an inappropriate burden was placed upon her when the judge observed that the expert medical witnesses did not “categorically” conclude that her headaches were caused by the accident and that no expert could “categorically” trace her present condition to the accident.

The court said that the trial judge did not impose a burden upon Jenkins to show that her symptoms were categorically related to the accident. The judge was simply emphasizing that the supportive medical opinions were dependent upon Jenkins’ own evidence, which were unreliable and not persuasive.

The court concluded that the trial judge properly found that Jenkins had established that the accident caused injuries to her neck and lower back, that the injuries worsened her headaches, severely affected her resilience, and had made resistance to and recovery from depression and pain more challenging. However, the judge also properly ruled that Jenkins failed to establish the degree and extent of damages that she claimed. The court also said that it was open to the judge, when assessing damages, to find that Jenkin’s dismissal from employment would have caused her to suffer from significant depression in any event.

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