Wednesday 17 June 2015

Was the accident victim’s claim for damages valid?

Back in the 1970s, I worked as an investigator and in that capacity, I investigated many cases of insurance fraud. Most of the investigations were related to motor vehicle accidents in which the claimants claimed that they were seriously physically injured. About ten percent of them were. The remaining ninety percent were not as seriously injured as they claimed they were.                  

This article is about a recent court case in British Colombia, Canada in which Sarah Tambosso sued for damages suffered as a result of two motor vehicle accidents in which she claims to have been injured. The first of the accidents occurred on July 5, 2008 (“the 2008 accident”) and the second occurred September 3, 2010 (“the 2010 accident”).

Her claims were for the most part, common to those typically claimed as a result of motor vehicle accidents including non-pecuniary damages for pain and suffering, past and future loss of income, costs of future care and special damages. Her claim for physical injuries include neck and back pain, jaw pain, and pain in her hips and legs. In this case, by far the most significant injuries of the plaintiff claimed are cognitive or psychological in nature including post-traumatic stress disorder, (PTSD) depression and mild traumatic brain injury which she claimed to have been caused by events surrounding the 2008 accident.

The defendant in the 2008 accident, Troy James Holmes, did not appear to defend the claims and had not been represented throughout the proceeding. The judge was advised that he was also in breach of his obligation to his insurer, the Insurance Corporation of British Columbia (ICBC), who was the third party in these proceedings. There has been no admission of liability by Mr. Holmes and no evidence called on his behalf regarding or denial of liability. Based upon all of the evidence before the judge relating to the 2008 accident, he found that the defendant, Troy James Holmes, alone was negligent in the operation of his motor vehicle and as such, was fully responsible for any damages claimed to be flowing from the 2008 accident. This could result in his insurer ICBC paying for the damages.

Liability was admitted by Julien Duchaine, the defendant for the 2010 accident. He too was insured by ICBC. The judge referred to the defendants in both accidents and ICBC as “the defence” although the heading of the case shows Tambosso suing Duchaine only. It was just a technicality because the real defendant in this case was the provincial insurance company as it would be them that would have to pay if Tambosso was entitled to any damages.

Tambosso claimed that she was emotionally disabled as a direct result of the two car accidents she was involved in. In her claim for damages of hundreds of thousands of dollars from the insurance company, she said to her psychiatrist, “Ever since the accidents, my life sucks, I am depressed, I am a homebody and the only friends I have are on the Internet.” No doubt she also sobbed during her interview with the psychiatrist.    

A psychological disorder, also known as a mental disorder, is a pattern of behavioral or psychological symptoms that impact multiple life areas and/or create distress for the person experiencing these symptoms. Psychiatry’s most fundamental tenet is that virtually all significant problems of thinking, feeling, and/or behaving are mental illnesses that need to be studied and treated from a medical perspective. That is certainly true of cases where the patient is really suffering from emotional issues.          

A personality disorder is a chronic and pervasive mental disorder that affects thoughts, behaviors and interpersonal functioning. According to a study published in the Journal of Clinical Psychiatry, an estimated 30.8 million American adults experience symptoms of at least one personality disorder. That is roughly 10% of all Americans. Since Americans and Canadians generally have the same kinds of problems, this could mean that 10% of Canadians (3.5 million) suffer to some degree from the same symptoms.

Malingering is a word that describes the practice of faking or exaggerating symptoms for some kind of personal gain. The question that the court had to answer was, “Is Ms. Tambosso faking her mental injuries?” If so, then the insurer is off the hook for those particular damages.                                 

Many psychiatrists have been duped into believing everything that their patients have told them. That is because psychiatry is not a science. Their conclusions are based on observations and testing. But as we all know, observations and tests can be altered by the person making his or her statements to a psychiatrist and /or taking the test to further that person’s goal, whatever it is.  Many psychiatrists have claimed that a person is sane, only to find out later after his patient killed innocent people that his former patient was always nuttier than a fruit cake. The converse is also true.              

Determining whether a client is malingering or suffering from some mental disorder can be difficult for a psychiatrist to determine. They must be careful to weigh all of the evidence and not jump to conclusions.

At the time of the 2008 accident, Ms. Tambosso was twenty-seven years of age. She was raised in Aldergrove, B.C. as the oldest of three children, the others being her younger brothers. The evidence presented to the court disclosed that the plaintiff was a good student who was active in sports and participated in a very active social life. She also attended the University of the Fraser Valley for two years after graduating from secondary school but did not graduate from the university.

After listening to evidence submitted in court, there was no doubt in the mind of the judge that prior to the time of the 2008 accident, Ms. Tambosso was very active, always employed, often in more than one job, was very energetic and led a very active social life. She also built up a considerable network of friends and business connections which assisted her in advancing her career and contributed to her lifestyle.

Ms. Tambosso was injured in three motor vehicle accidents prior to the 2008 accident and received settlements as a result of claims that were made by her as compensation for her injuries.  WOW. This means that with the other two accidents (2006 and 2010) she has suffered from five motor vehicle accidents in which she suffered from some form of physical injuries. 

I have been driving for fifty-five years since 1960 in Canada, the United States, Mexico, Belize and Italy and although I have been in some fender benders, I have never been injured, even when my car on one occasion was struck head on by another car that was going 65 miles an hour. That driver of that car had two previous accidents that were head on collisions and the insurance companies paid the man off. My insurance company also paid him off despite that fact that my car was stationary. Later I took the man to court and the judge concluded that the other driver was the guilty party and not me. My insurance company screwed up. If they had checked this man’s insurance history, they would have spotted the man’s scam.

I am going to tell you about an accident that occurred in November 2003 (one I didn’t investigate).  After the woman’s vehicle had collided with a truck late one snowy evening in Whistler, B.C. totaling her vehicle, she exited from her vehicle but fell and another vehicle then drove over her legs. I hardly think that was done on purpose.

During 2004, Ms. Tambosso was described by Dr. Johnston as “depressed and weepy because she could not snowboard or exercise. She had lost confidence”. Ms. Tambosso was also referred that year to a Dr. Crossman for chronic pain. Dr. Crossman reported regarding the pain and also stated “she was having some emotional difficulties” and was to follow up regarding the same with her family doctor.

Two further motor vehicle accidents occurred in 2005; however Ms. Tambosso had limited recollection of those accidents which resulted in further, although less serious injuries to Ms. Tambosso. Her injuries included whiplash and secondary headaches.

The judge in the current matter concluded from the evidence of Ms. Tambosso’s energy, work ethic, social life and general attitudes prior to the 2008 accident that she had been very active, vibrant, popular, hard-working, active in many sports and, “driven” as at least one witness stated; however, at some point, likely during late 2007 and into 2008, her enthusiasm for work diminished, she had become moody and was suffering from some degree of depression.        

On July 5, 2008, Ms. Tambosso was working at the Summit in Whistler as manager of the front desk. She and her friend, Adrienne Greenwood, had planned to attend a charity event that evening in Vancouver. Ms. Tambosso was to drive Ms. Greenwood in Ms. Tambosso’s new Mazda pick-up truck. They met at Ms. Tambosso’s apartment in Squamish and then set out for the trip to Vancouver. Their route was southbound on the Sea-to-Sky highway, also known as Highway #99, for the approximately one hour drive to their destination in Vancouver.       

After leaving Squamish, Ms. Tambosso and Ms. Greenwood soon passed through the community of Britannia Beach and were continuing through the southern end of Britannia Beach in an area where there were two southbound lanes climbing up out of the Britannia Beach area. There were concrete medians on either side of the highway and in the center of the highway dividing the north and southbound traffic.

There were three eyewitnesses to the 2008 accident who testified that Ms. Tambosso, Ms. Greenwood and Jeremy Leal, who was a front seat passenger in a vehicle driving behind the Ms. Tambosso’s Mazda pickup truck at the time of the accident. Although there is relative agreement in the evidence of those three witnesses as to what occurred up to the moment of the accident, there is a wide divergence in the evidence as to what occurred after the time of impact between the Mazda and the vehicle driven by the defendant Mr. Holmes. I will summarize the evidence of each of the three witnesses to the accident and my findings of fact based upon all of the evidence surrounding the accident.

Ms. Tambosso testified she was travelling in the right lane at a speed of 80 to 90 km/h as was another vehicle that was almost beside her to her left. The other vehicle would have been that driven by Andrea Reichert in which Mr. Leal was a passenger. She also noticed in her rear-view mirror another vehicle “tailgating” her Mazda, which was a silver Acura sedan driven by the defendant, Mr. Holmes. She stated that there was a gravel shoulder to her right and that the vehicle behind her began to pass her on the shoulder on the right side between her Mazda and the concrete barrier on the outside of the highway. Ms. Tambosso continued and stated that Adrienne Greenwood said “what the hell is this idiot doing?”, referring to the car on her right (the Holmes Acura). What that driver was doing was illegal. You cannot pass a moving vehicle by driving on a shoulder to the right of the moving vehicle.

Ms. Tambosso testified: “The Acura almost got to the front of my truck and turned into my vehicle, hit me to the front of my vehicle sending my car all over, swerving, fishtailing trying to gain control and I managed to regain control and I got off to the side of the road. I jumped out of the truck and ran down the street northbound towards the guy who hit me, his car was a mess. From what I remember when he hit me, his car got some airtime and flipped over and landed facing forward, car parts were strewn everywhere and his air bag had gone off and the cement barriers were out of place and parts of his car everywhere.”

She also said; “I went to try and help him.  His car was really damaged. Then he looked at me. His eyes are imprinted on my mind. He drove towards me (but) he didn’t hit me, I thought that he was going to kill me, drive over me, but he was trying to get away from the scene. I don’t know how he drove his car (but) he managed to get somewhere up the road.”

Ms. Tambosso testified that the paramedics arrived in about 45 minutes. By the time the paramedics arrived, Ms. Tambosso testified she “started to feel some pain in my upper extremities”. Ms. Tambosso further testified she was “annoyed” at Ms. Greenwood who stated, “Let’s take off” and that Ms. Greenwood really wanted to go to the charity event in Vancouver. Ms. Tambosso later testified that “I may have hit my head. There was something really bad in my shoulder.” Then she testified that Ms. Greenwood said to the paramedics “She doesn’t need a sling, she’s fine, let’s soldier on.”  Friends like that, you don’t need.

 The judge said that it was clear from the evidence of Ms. Tambosso, that immediately after the impact with the Acura, she continued driving straight ahead, concentrating on keeping her Mazda under control and coming to a stop. Ms. Tambosso did not see what happened to the Acura which spun out behind her, hitting the outside concrete barrier and then the center concrete barrier before coming to a stop. During cross-examination of Ms. Tambosso on January 28, 2014, Ms. Tambosso was asked about statements made by her to Dr. Steven Anderson during an assessment in 2011 that the Acura had “flipped over”, though she later confirmed she did not know what had happened to the Acura. That was in obvious conflict as to what she had said earlier.

There was no doubt in anyone’s mind that Mr. Holmes, the driver of the Acura was 100% at fault for the accident which explains why he didn’t bother showing up at court. If he applies for insurance again, his premiums will be so high, unless he is a millionaire, he probably won’t be driving again. 

I remember many years ago when I, my wife and our children were driving north in Ontario to catch a ferry. Some fool who tail-gaited us moved into the shoulder on our right and then sped ahead of us at a terrific rate of speed.  When we arrived at the parking spot for the ferry 30 minutes later, we parked behind that fool. The ferry hadn’t arrived yet. It was thirty minutes late.  H risked our lives and his for nothing.

At the opening of her cross-examination, Ms. Tambosso was questioned as to whether she had made a 911 call after the 2008 accident. At first, Ms. Tambosso stated that she did not recall whether she had called 911. Counsel then referred to a recording of a 911 call in respect of which counsel for the defence had delivered a notice to admit that the recording was of a 911 call of Ms. Tambosso made July 5, 2008 to ECOMM Emergency Communications. Ms. Tambosso was clearly in control of her emotions during the call and laughed on several occasions. Her voice reflected some anxiety which would have been expected having witnessed what had occurred a few minutes before her call. 

Ms. Tambosso’s second accident occurred on September 3, 2010. She was driving her small SUV and had come to a stop in a right turn lane off of Cleveland Avenue in Squamish, waiting for southbound traffic on Highway #99 to clear so she could proceed with her right turn. Her young son, Adam, who was almost one year old at the time, was in a car seat in the back row of seats. While waiting for traffic to clear, Ms. Tambosso’s vehicle was “rear-ended” by a vehicle owned and driven by Julien Duchaine. She stated that her car was “smashed forward and back. Liability for the accident had been admitted by Duchaine and ICBC.

Now I will deal with the evidence presented on Ms. Tambosso’s behalf by her lawyer. He submitted reports from seven medical expert witnesses and all of those experts testified at the trial. A very significant portion of the evidence submitted through the experts related to the claims of Ms. Tambosso of her suffering from PTSD and an alleged minor traumatic brain injury.        

The judge said in response; “Earlier in these reasons I mentioned the position of the defence that the major issue in this case was the credibility of the plaintiff. I affirm in my detailed review of the evidence later in these reasons that the plaintiff’s credibility is at the heart of all of her claims. With these findings of fact in mind, I turn to the evidence of the several experts who provided reports and testified on behalf of the plaintiff. In most of those cases, Ms. Tambosso described to the experts a scene that did not occur. She also told differing versions of the incident to different experts. It is these subjective descriptions of events by Ms. Tambosso that caused the relevant experts to diagnose Ms. Tambosso with PTSD.” unquote

The Supreme Court of Canada in 1982 established that facts relied on or assumed by an expert for the purpose of forming an opinion must be proven in evidence before the expert opinion can be given any weight. In other words, the lack of a factual foundation will cause the expert’s opinion to be given little, if any weight. If Ms. Tambosso was making some of the events up or misconstrued the events as they happened and presented that information to the psychiatrists, then their records and testimony would be flawed and thusly, not accepted as valid evidence.

The Supreme Court found that while each of the specific facts underlying the expert’s opinion need not be proven in evidence; there must be at least some admissible evidence to establish the foundation of the expert’s opinion. The more the expert relies on facts not proved in evidence, the less weight is to be given to the expert’s opinion.

Mr. Justice Sopinka of the Supreme Court said, “Where, however, the information upon which an expert forms his or her opinion comes from the mouth of a party to the litigation, or from any other source that is inherently suspect, a court ought to require independent proof of that information. The lack of such proof will have a direct effect on the weight to be given to the opinion, perhaps to the vanishing point. But it must be recognized that it will only be very rarely that an expert's opinion is entirely based upon such information, with no independent proof of any of it. Where an expert's opinion is based in part upon suspect information and in part upon either admitted facts or facts sought to be proved, the matter is purely one of weight.” unquote

The trial judge hearing Ms. Tambossa’ case said; “I fully concur with the principles outlined above. In this case, (the one he is dealing with) the expert reports provide a markedly different version of the 2008 accident than what I have found actually occurred. Given that the factual foundation on which the reports are based, in particular the alleged “triggering event” for the PTSD, has not been proven in evidence, the weight I am able to give each report has been affected.” unquote

He then said that he would discuss the evidence of each expert in turn, evaluate the factual foundation on which they are based, and determine what weight if any should be given to each. I won’t give you the lengthy explanations of the many experts and the judge’s responses to them However, I will tell you what the judge wrote in his decision after he studied their reports.  

"In the opening of these reasons, I referred to the defence position that the major issue in this case is the credibility, or lack thereof, of the plaintiff. I have already found in these reasons that the event which the plaintiff alleges is the triggering event of her alleged PTSD and other psychological concerns was the incident following the 2008 accident, ie. when the plaintiff ran down the hill towards the defendant Holmes and made eye contact with him, did not occur. The evidence of the plaintiff with regards to that incident was only the beginning of her attempts to fabricate evidence so as to exaggerate what had occurred, her injuries and their effect on her life since 2008. This section of my reasons for judgment dealing with the lack of credibility of the plaintiff could consume many, many more pages than I will record, but I will highlight certain aspects of the evidence in the following discussion." unquote

The judge in his ruling said; “Ms. Tambosso testified over many days at trial and throughout exhibited considerable physical discomfort, rarely turning her head to either side. When turning towards counsel, to the court or to pick up a document binder, Ms. Tambosso would turn her entire body while keeping her neck stiff. However, in none of the many hours of video did she move her body in the same manner as she did at trial. The videos consistently recorded the plaintiff walking, running across a highway, rollerblading at length with Ms. McMillan, lifting her young son, on occasions above her head without any apparent pain and generally reflected free movement of her neck and head. Her range of motion and ability to move freely was readily apparent, leading me to the conclusion that the stiffness of movement during trial was a considerable exaggeration of any limitations she may have had. The following video surveillance evidence was contrary to her behavior at trial.” unquote

This brings to mind an incident that occurred when I was investigating a woman’s insurance claim. She claimed that she couldn’t walk properly as her ankles were severely and permanently injured. When she entered the courtroom, she used a walker and limped ever so slowly. What she and her lawyer didn’t know was that several days earlier, with a movie camera in hand, I had filmed her waking briskly down the street without a walker and later working in her garden while squatted on her ankles. All the time she watched the film, she was straight faced. Needless to say, she didn’t get a cent.

Throughout her evidence, this woman testified that as a result of the PTSD and stress suffered as a result of the aftermath of the 2008 accident, her life completely changed from that of a vibrant, outgoing, industrious, ambitious, physically active, progressive and healthy young woman to that of a housebound, depressed, lethargic, forgetful, unmotivated woman who is unable to concentrate, cannot work, has friends only on the internet and whose “life sucks”.   

Unfortunately for this woman, she used her Facebook. One hundred and ninety-four pages of Facebook entries from her Facebook page were posted between May 7, 2007and July, 2011 and were entered in evidence following an order for production by Master Tokarek in August 2011. There were extensive status updates, photographs, and other posts to the plaintiff’s Facebook page that at face value appear to directly contradict her evidence regarding her alleged injuries, and her state of mind following the 2008 accident in particular.

The judge said in his ruling; “I conclude that based on this Facebook evidence, in particular the photos of continued attendance at social events and posts from friends, that the plaintiff had a very active social life following the 2008 and 2010 accidents. The social life portrayed by her Facebook profile is consistent with the social life of someone who went through three engagements, the birth of a child, and a marriage. It is completely inconsistent with the evidence the plaintiff gave at trial and to the experts that she was a “homebody” whose “life sucked” and “only had friends on the internet.” unquote

This woman was inadvertently  seen in video evidence of her ability to move about with ease and brag about her great life in her Facebook.

The judge also said; “In assessing damages for the injuries of the plaintiff I have considered all of the cases submitted by both the plaintiff and the defence as well as the personal circumstances of the plaintiff. The submissions of the plaintiff, however, were not particularly helpful in that the emphasis was on the alleged PTSD and mild traumatic brain injury issues which I find were not proven.” unquote

As to claiming for lost wages, the judge said, “In light of my findings as to when the plaintiff was able to return to work, there will be no award to the plaintiff for future income loss and loss of capacity. Ms. Tambosso was given a reasonable proposal to return to work, as confirmed in the letter from Rosemary Cook of the Summit Lodge of November 10, 2008, yet failed to respond or make any attempt to return to work.” unquote

The defence submitted that the plaintiff should receive an award of $10,450 in net wage loss, representing two and one-half month’s wages. That in the judge’s opinion was reasonable. He accept the submissions of the defence on the issue of past wage loss and award $10,450 under that head of damage.

The judge said in his decision; “Claims for payment of services for many of the items claimed have not been supported by invoices, are related to couples therapy, are dated before the 2008 accident or were not causally related to the accident save for the sum of $592.30 which is the total of medication costs prescribed by Dr. Malherbe in 2008, physiotherapy, early massage treatment and chiropractic fees incurred in 2010. I accept that claim and I find that the plaintiff is entitled to $592.30 in special damages.” unquote

Dr. Michael Baldwin provided acupuncture and Chinese medicine treatments to the plaintiff; however, there were no invoices supporting those treatments and no evidence suggesting the treatments were necessary as a result of the accidents. This claim for $685 was dismissed.

The judge also said; “Considering all factors, including the limited months in which I find the plaintiff experienced pain and suffering from these accidents, the limited recovery process which included minimal physiotherapy and not taking medication after two months, but also considering the drama of the 2008 accident, I find that the plaintiff is entitled to non-pecuniary damages in an amount of $25,000.” unquote

The judge also said in his decision; “The plaintiff seeks special damages totaling $63,723.08. The largest component of this claim is the sum of $42,360 which is the amount owed to Dr. Milstein for treatments commencing in 2009 and continuing to trial. The treatment was intended to relieve her alleged PTSD and mild traumatic brain injuries which, even if suffered, which I doubt, bore no causal relation to the 2008 and 2010 accidents. Much of the treatment, according to the clinical records of Dr. Milstein and his wife, relate to psychological issues the plaintiff was experiencing due to family issues involving her relationship with her mother and relationship issues with Kelly Dyer, neither of which were provided as a result of the accidents. As well, Dr. Milstein admitted that much of his treatment was not useful to the plaintiff. The claim for payment of Dr. Milstein’s invoices is accordingly dismissed.” unquote

He also said; “Other claims of the plaintiff, including that of invoices from Colleen Fraser, a massage therapist, relate to services provided commencing in 2012 and do not appear to be related to the motor vehicle accidents. Ms. Fraser last provided massage services to the plaintiff in December of 2013. Some of the massage treatment related to the plaintiff’s jaw which I have found was not related in any way to the accidents. This portion of the claim, amounting to $6,993, is dismissed.” unquote

I have no idea as to how much she paid her lawyer or if she also has to pay for the lawyer of the provincial insurance company but she was definitely a loser in this case. She was entitled to the money she was awarded but she failed to scam the provincial insurance company out of money she didn’t deserve. Scammers cost honest drivers higher premiums because of the payouts to the scammers.  I think her premiums will be quite high because of what she tried to do to the provincial insurance company.  She will have paid a great deal of money for a lesson learned the hard way—honesty really is the best policy. 

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