A recent BC case illustrates the difficulty faced by self represented litigants at trial. In Uppal v. Chung, 2017 BCSC 80, Mr. U was injured in two accidents, one of which caused serious disruption to his life. Liability was at issue in both accidents and Mr. U’s ability to receive any damages depended on establishing liability. Mr. U retained counsel until the summer before the trial.
Mr. U did not file any expert reports or call any expert medical evidence to support his claim that the two accidents caused his injuries. He did tender clinical records from his family doctor and other treating specialists. After hearing evidence with respect to both accidents, Madam Justice MacNaughton determined the other driver was at fault for the first accident and that Mr. U was responsible for the second accident.
As Madam Justice MacNaughton explained to Mr. U at trial, the law places restrictions on the use of clinical records at trial. Absent an expert report from a medical practitioner, clinical records provides may only be considered for limited purposes. For example, a doctor’s observations and prescribed treatments are facts and admissible as facts without further proof. However, diagnoses made by a doctor, statements made by a patient, and diagnoses made by a person to whom a doctor has referred the patient are admissible for the fact they were made, but for whether or not they are true. Additionally, any statement by a patient or a third party that is not within the observation of a doctor or person who, in the ordinary course of business, has a duty to record those statements is not admissible for any purpose. Finally, opinions contained in clinical records are not admissible for their truth; they are admissible only for the fact that they were reached at the time.
Mr. U’s complaints of pain were almost entirely subjective and he called no expert medical evidence to support his subjective evidence, making proving the extent and prognosis for these injuries difficult. Additionally, the court exercises caution with respect to subjective pain. Madam Justice MacNaughton cited with approval Butler v. Blaylock  B.C.J. No. 31:
“An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence – which could be just his own evidence if the surrounding circumstances are consistent – that his complaints of pain are true reflections of a continuing injury.”
In terms of damages, Mr. U didn’t quantify his damage claim under the various heads of damages under which he was seeking recovery. For loss of past and future earning capacity, Mr. U presented no evidence that would support an award. Because Mr. U had not presented any evidence he was unable to prove an impairment of a realistic employment opportunity and Madam Justice MacNaughton couldn’t award him anything.
The lack of any medical evidence from Mr. U’s treating doctors meant that he could not succeed in an award for cost of future care. He gave no evidence about a program he wanted attend or any medical devices with he might need in the future. Madam Justice MacNaughton made it clear that “clinical notes alone cannot support an award of future care costs”.
He was awarded $40,000 for pain and suffering as a result of the first accident and only successful on a $20,000 award for past loss of income based on his evidence from payroll records.
This case illustrates why a lawyer is essential in properly preparing your evidence for court. If you or anyone you know has been in an accident, reach out to the goodfirm ICBC lawyers at www.ricthertriallaw.com.