Toronto Injury Lawyer Blog
It’s quite difficult for a Plaintiff in a personal injury case to properly articulate the pain and suffering which they are going through.
How do you express those feelings of daily pain, suffering, depression, anxiety and trauma. Words often don’t do justice.
Sometimes, on the stand at trial, or perhaps under oath at an Examination for Discovery, it’s not the words which are impactful. It’s the tears. It’s the weeps, the sobs, the grasping for words and conveying a sense of complete breakdown with no words at all. Sometimes, it’s even a Plaintiff fainting, or having a panic attack such that they need to be wheeled out on a stretch by paramedics and put in the back of an ambulance.
All of this is to suggest that it’s very hard for a Judge, Jury and Insurer to understand the depths of pain and trauma which a Plaintiff feels after a serious accident with words and words alone.
But, this is how our legal system works. A Plaintiff is required at some point in the process of their litigation, to articulate their injuries and the impact which those injuries have had on their lives, under oath. This isn’t easy under any sort of circumstance. When you factor in that it’s likely the Plaintiff’s first time involved in litigation; and knowing that this is their one shot at getting things right along with the pressure and stress that brings, it’s a lot to handle.
It would be far easier if a Judge, Jury and Insurer were called in to follow a Plaintiff for a week or two. That way, they could see how difficult it is for a Plaintiff to manage their regular activities of daily living. The people who are deciding on the Plaintiff’s fate could see the stiffness they have when they wake up in the morning. They could see how slowly and gingerly they function just to prepare a cup of coffee. They could see how they struggle to manage their regular activities of daily living. They would have a front row seat for the tears and emotional breakdowns when they happen.
This does not happen, and is not permitted in personal injury cases in Ontario. The closest thing we have to such a thing are “day in the life” videos which are ordered by the Plaintiff’s personal injury lawyer to support their case.
It’s funny, because in criminal cases, the concept of taking a view, or a view, are allowed. In a Canadian criminal trial, a judge or jury can attend the scene of the crime, known as a “view” or “jury view,” and is codified under Section 652 of the Criminal Code. The view is a rare tool, but it helps the Judge and Jury better understand the evidence and it has to be in the interests of justice. This sort of thing happens in a criminal case so that the Judge and Jury can come to the right and just result. But, this sort of thing does not happen in a personal injury case at all.
How would a criminal “jury view” work in the context of a personal injury case? If the Judge and Jury can go out to see the scene of a crime for a criminal trial, then there is no reason why a Judge and Jury cannot attend at the scene of an accident in a personal injury case. But this is the topic for another debate.
What would be intrusive and weird is having a Judge and Jury spend a day (or a few hours), running errands with a Plaintiff so that they can observe and assess their level of functionality. Imagine a minibus or van filled with lawyers, jurors and a judge driving around and following a Plaintiff en route to a grocery store, then following them in the frozen food section to see how they manage. There would be disputes about what the Plaintiff does that day. There would be questions as to whether or not the Plaintiff is laying it on thick for the observers at hand. This isn’t practical or realistic.
Which is why it’s so important for a Plaintiff to get his/her testimony RIGHT on the day when they’re being questioned under oath either at trial or at their examination for discovery. This creates immense pressure for a Plaintiff. They cannot afford to have an off day, or to say the wrong thing. They get one shot, and one shot alone to make their case and get the Judges and Jurors on side. If the Plaintiff has an off day, or does not get their point across, or does not come off as likeable or credible, then their chances of success decrease.
It’s easy to say for a lawyer to a Plaintiff not to have an “off day” on their most important day of testimony. What can help mitigate the risk is the Plaintiff not having “off days” when reporting their symptoms to their doctors and treatment professionals over the course of their personal injury case; which will likely take a number of years. What else can help in mitigating the risk for a Plaintiff being heavily scrutinized at trial is regularly attending at treatment and appointments. This means not missing appointments because they just don’t feel like going. Missing appointments for care and treatment (particularly when those appointments are free through the OHIP system!) will be frowned upon by a Judge and Jury. How can a Plaintiff get on the stand and say under oath that they are experiencing tremendous pain and suffering, yet; they aren’t bothering attending medical appointments which might perhaps reduce the pain and suffering. It comes off as disingenuous and self serving evidence from a Plaintiff when their words don’t align with their actions.
A Plaintiff can make the excuse that they were nervous on their big day when they were required to give testimony. But, a Plaintiff cannot make an excuse when in the years leading up to their big day at trial that they refused, or simply did not attend for treatment or regular care when it was recommended that they attend.
