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.
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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