Why the appeal court shot down this injured driver’s $631K damage award

B.C.’s Court of Appeal has quashed a damage award of more than $631,341 to an injured driver.

A trial judge ruled the injured driver was entitled to receive the award, even though the same trial judge found the driver’s testimony lacked credibility and reliability — and even hinted at an attempt to defraud the province’s public auto insurer.

To be clear, the B.C. Appeal Court did not make any finding on the subject of auto insurance fraud, which was not at issue in the case. But it did wonder why the trial judge ruled the injured driver should be compensated for injuries caused or exacerbated by the accident.

“The judge concluded she could not accept [Alasdair John] Girvan’s evidence at ‘face value’ because his testimony was inconsistent and contradictory, and he had demonstrated a willingness to feign, exaggerate, or embellish his injuries to obtain financial benefit, which was ‘fatal to his credibility and taint[ed] the whole of his evidence at trial,’” the B.C. Court of Appeal ruled in a decision released Friday.

“Despite these findings, the judge concluded, relying on the ‘evidence as a whole,’ that as a result of the accident Mr. Girvan suffered an exacerbation of pre‑existing physical injuries and a new soft‑tissue injury to his left shoulder. The judge also found that Mr. Girvan suffered an exacerbation of pre‑existing anxiety and depression and a recurrence of major depression with new psychotic features….

“The judge’s discussion of the evidence and her restatement of the law were comprehensive. However, I am of the view that the judge did not adequately explain how, after identifying numerous credibility and reliability issues, she reached the conclusion that Mr. Girvan had met his burden of proving causation. The judge’s review of the evidence and her findings with respect to causation stand in stark juxtaposition.”

What happened

Girvan’s car was rear-ended by Eleanor Joanna McGlue on July 18, 2017. “The appellant, Ms. McGlue, was approaching an intersection travelling between 40-60 km/hour when she noticed traffic slowing ahead of her,” as the court decision notes. “She attempted to brake, but was unable to stop and rear‑ended Mr. Girvan’s vehicle.”

McGlue admitted liability.

“The [trial] judge accepted Ms. McGlue’s testimony that immediately following the accident Mr. Girvan hopped out of his vehicle and walked towards Ms. McGlue’s vehicle looking friendly and concerned,” the court decision noted.

“Ms. McGlue apologized to Mr. Girvan who told her not to worry and that he had not felt the impact of the accident. Ms. McGlue exchanged numbers with Mr. Girvan who then climbed back into his SUV and drove away.”

But then later, after Girvan left the scene of the accident, the trial judge found he had phoned McGlue “and told her he had spoken with a friend who said if they called the paramedics to the scene of the accident, they could each get $20,000 from the Insurance Corporation of British Columbia for an injury claim,” as the Appeal Court summarized the lower court findings. “Ms. McGlue responded that she was not injured and wanted no part in that.”

After the phone call, a fire truck arrived at the accident scene, the Court of Appeal observed.

“The first responders asked Ms. McGlue whether she had called for them,” the trial judge found, as summarized in the Appeal Court. “She told them she had not. Ms. McGlue then looked across the street and saw Mr. Girvan’s vehicle parked on the shoulder. The first responders drove to Mr. Girvan’s side of the street.”

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Unreliable evidence

At first, Girvan said he did not recall calling McGlue. But when her phone records corroborated his call to her, he then switched to denying he even made the call.

Girvan later returned to the scene with his girlfriend and had her pop the clutch and start the engine of the SUV while he pushed it forward. This evidence undermined his claim of sustaining a shoulder injury, the Appeal Court found.

The Appeal Court also agreed with the trial judge that Girvan’s doctors’ testimony was unreliable because it relied heavily on Girvan’s self-reporting.

“The [trial] judge found Dr. [Shaohua] Lu’s opinion as to Mr. Girvan’s pre-accident condition was inconsistent with the preponderance of the evidence, including Dr. [Sidney] Field’s clinical records, the WorkSafeBC claim for psychiatric injury, and [Girven’s ex-girlfriend’s] testimony, which established that Mr. Girvan had reported anxiety, panic attacks, and depression in the months prior to the accident.

“When pressed on the inconsistencies in his evidence, Dr. Lu became defensive and argumentative.

“The judge rejected Dr. Lu’s opinion that Mr. Girvan was psychologically stable prior to the accident and found the evidence established that Mr. Girvan’s pre‑existing psychological issues were significantly more active and extensive than Dr. Lu acknowledged. This was the case even without factoring in Mr. Girvan’s ongoing cocaine use and prior treatment for addiction, neither of which had been disclosed to Dr. Lu or put to him at trial, due to the order of Mr. Girvan’s testimony and Dr. Lu’s apparent intransigence.”

Absent any “corroborative objective evidence” supporting Girvan’s injury claim, the Appeal Court found the trial judge had made an error in concluding the “evidence on the whole” supported a court award for the injuries that he claimed were caused by the accident.