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Case Summary: Bumstead v. Dufresne
Defence + Indemnity

Surveillance evidence significant in discrediting Plaintiff in large chronic pain case.  

Bumstead v. Dufresne, 2015 ABQB 787, per Horner, J.  

I. FACTS AND ISSUES  

The Plaintiff was injured in a rear­-end motor vehicle accident on a secondary highway approaching the exit to the Highway #1. His truck was rear­-ended by a much smaller vehicle. The descriptions of the accident and the resulting damage and force of impact were very different from the Plaintiff and Defendant. The Trial Judge preferred the Defendant’s description, being more consistent with the accident reconstruction evidence by experts on behalf of both parties and the limited physical evidence available.

The Plaintiff never returned to work as an industrial electrician working in the oil and gas industry after the accident. He made some attempts to return for short periods of time but failed. He received long term disability benefits for a time, until they were ultimately discontinued. He settled his claim with the disability insurer after they obtained surveillance evidence showing him working in awkward positions replacing the brakes on his vehicle in a back alley over a period of approximately three hours one day without assistance. That surveillance evidence, introduced by the defence at the Trial was of great significance in the Trial Judge’s assessment. The date the Plaintiff did the brake replacement is the day the Trial Judge terminated the Plaintiff’s damages claim.

The Plaintiff claimed Chronic Pain Syndrome had developed as a result of his injuries. He took the position that his pre-­existing back pain and other work-­related injuries and health issues were unrelated to the accident and that all of his complaints after the accident, including the development of Chronic Pain Syndrome, resulted from the motor vehicle accident.

A number of medical experts testified on behalf of both parties. Dr. Suffield, a Neuropsychologist on behalf of the defence, reviewed the Plaintiff’s medical history and his psychometric test scores, particularly the Fake Bad Scale and other validity scales in a number of tests. Dr. Suffield ultimately concluded that the Plaintiff was malingering. Dr. Suffield only came to that conclusion after he saw the surveillance evidence. The Trial Judge appreciated his consideration of new evidence. She criticized some Plaintiff experts for failing to reassess and adjust their opinion when they were confronted with new evidence. A dispute amongst the experts regarding the usefulness and relevance of the Fake Bad Scale in the MMPI was not ruled on by the Court.

II. HELD: For the Plaintiff; damages of less than $300,000.00 awarded

  1. This is a personal injury claim relating to chronic pain with very significant credibility issues. The Plaintiff’s claim in excess of $2 Million resulted in an ultimate judgment of less than $300,000, the exact terms and calculation of which are still subject to review by the Trial Judge. The Judge relied on strong surveillance evidence to cut off the Plaintiff damages claimed at a specific date at which she was sure the Plaintiff was no longer disabled as claimed. She did not find him to be credible, but stopped short of finding that he was malingering. 
  2. The Plaintiff was injured in a rear­-end motor vehicle accident on a secondary highway approaching the exit to the Highway #1. His truck was rear-­ended by a much smaller vehicle. The descriptions of the accident and the resulting damage and force of impact were very different from the Plaintiff and Defendant. The Trial Judge referred the Defendant’s description, being more consistent with the accident reconstruction evidence by experts on behalf of both parties and the limited physical evidence available. 
  3. The Plaintiff never returned to work as an industrial electrician working in the oil and gas industry after the accident. He made some attempts to return for short periods of time but failed. He received long term disability benefits for a time, until they were ultimately discontinued. He settled his claim with the disability insurer after they obtained surveillance evidence showing him working in awkward positions replacing the brakes on his vehicle in a back alley over a period of approximately 3 hours one day without assistance. That surveillance evidence, introduced by the defence at the Trial was of great significance in the Trial Judge’s assessment. The day of the Plaintiff doing the brake replacement is the date the Trial Judge terminated the Plaintiff’s damages claim. 
  4. The Plaintiff claimed Chronic Pain Syndrome had developed as a result of his injuries. He took the position that his pre-­existing back pain and other work-­related injuries and health issues were unrelated to the accident and that all of his complaints after the accident, including the development of Chronic Pain Syndrome, resulted from the motor vehicle accident. 
  5. A number of medical experts testified on behalf of both parties. Dr. Suffield, a Neuropsychologist on behalf of the defence, reviewed the Plaintiff’s medical history and his psychometric test scores, particularly the Fake Bad Scale and other validity scales in a number of tests. Dr. Suffield ultimately concluded that the Plaintiff was malingering. Dr. Suffield only came to that conclusion after he saw the surveillance evidence. The Trial Judge appreciated his consideration of new evidence. She criticized some Plaintiff experts for failing to reassess and adjust their opinion when they were confronted with new evidence. A dispute amongst the experts regarding the usefulness and relevance of the Fake Bad Scale in the MMPI was not ruled on by the Court. 
  6. The assessment of damages was not particularly complex in this matter. No significant new legal principles were established. In the initial reasons the Judge made errors with respect to the calculation of the past loss of income that was awarded. She grossed up the loss of income rather than reducing it to a net income basis. In addition, the deduction for Section B benefits that was clearly intended to be made was not mathematically made in the calculation of the final amount awarded for past loss of income. On further application the Trial Judge determined that she could and should correct the errors in her judgment under Rule 9.13. The deduction for Section B benefits was to be made. She acknowledged that past loss of income damages are not to be grossed up and reduced the damages to eliminate the tax gross up that had been applied. She concluded that the income figures she used had been net income and not gross income, so no further adjustment was made. The last aspect of the judgment calculation is still under discussion among counsel. 
  7. The Trial Judge made a ruling with respect to costs in this matter. The Plaintiff had multiple experts in several areas of expertise. The Judge limited the recovery of costs for those experts. In particular, of two psychology experts costs were allowed for only one. Of four medical experts costs for only two were to be allowed. 
  8. The entire judgment is under appeal by the Plaintiff. The calculation of past loss of income and possibly other elements of the judgment are under appeal by the Defendant. Both parties question whether the termination of changes on the date the Plaintiff was observed performing the brake work is appropriate. The Plaintiff suggests damages should have been confirmed beyond that date to allow for retraining or to find employment. The Defendant argues this effectively reversed the onus and that damages should have been terminated earlier, at the last date the Court was satisfied on a balance of probabilities that the Plaintiff was disabled.

III. COMMENTARY:

Counsel for the Defence in this matter was Field Law's very own Doreen Saunderson of the Calgary office.

The judgment is helpful as reflecting an effective use of surveillance evidence and grounds for negative credibility findings. The evidence in this case challenging the Plaintiff’s credibility was particularly strong. There will be few other cases where there will be so many bases upon which a Trial Judge can be invited to find that the Plaintiff’s evidence is not credible.

The judgment is also useful with respect to the Trial Judge’s direction that not all experts retained and called by the Plaintiff are necessarily going to be reflected in the Bill of Costs payable by the Defendant. 

At the conclusion of this matter, taking into account formal offers made before trial the net judgment payable to the Plaintiff is very low. If further corrections are made to the calculation of the past loss of income as the Defendants assert, a net amount will be payable by the Plaintiff to the Defendants, given the Defendants entitlement to costs after a Formal Offer made. The case is an excellent example of the powerful effect of an early, reasonable formal offer. 

In this case the surveillance evidence was particularly effective because of its proximity in time to IME attendances by the Plaintiff where he described significant limitations entirely inconsistent with the surveillance evidence. In addition, the evidence was particularly effective given the activity the Plaintiff was observed doing and the multiple different bodily positions he was able to get in and out of and sustain beyond what he reported or demonstrated when aware that he is being assessed. In the surveillance evidence he showed no obvious signs of pain or discomfort despite these body positions and heavy lifting and physical exertion involved. Defence experts reviewed the surveillance video when it became available and wrote reports and testified very effectively on the effect it had on their opinions.

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