Corroborating Evidence of a Change in Function
In a case of Gyorffy v. Drury, released on January 22, 2015, the Ontario Court of Appeal dealt with the question of whether an injured person could provide corroborating evidence of a loss of function.
The Plaintiff, Gyorffy, sued Drury and claimed that he had suffered a severe whiplash injury which caused continuous and permanent back pain, acute and chronic pain in his right shoulder, continuous headaches, and decreased range of motion in his spine.
At trial, Gyorffy called three physicians who testified and Gyorffy also testified but did not call any other evidence. Although the judge accepted Gyorffy’s evidence about his pre- and post-accident conditions, he found that the Plaintiff could not provide the corroborating evidence required by the Regulations to meet the threshold and therefore granted the Defendant’s motion dismissing the action.
The Divisional Court and the Court of Appeal found that it was the physicians’ evidence that required corroboration and not the individual Plaintiff. Corroborating evidence is simply evidence that is separate from but strengthens or confirms what other evidence shows.
The Regulation requires the evidence of a physician, plus the evidence of one other witness, and the Court determined that a Plaintiff could be that other witness.
The Court went on to indicate that the other evidence may come from the Plaintiff himself, a family member, an employer, a co-worker, another layperson or even surveillance or medical records, as Section 4.3(5) does not exclude anyone or anything, and indicated that there would be cases such as those involving minors or a severely brain injured Plaintiff where the Plaintiff themselves could not provide the corroborating evidence.
It is interesting in that particular case that the Plaintiff decided to call three physicians and give evidence himself, as opposed to calling evidence of treatment providers and others that could corroborate the change in function but ultimately, the Court concluded that the Plaintiff himself by giving evidence can corroborate the change of function and therefore corroborate the evidence of the medical doctors who were called to support the Plaintiff’s injuries and that those injuries met the threshold.
This is a brief overview of the legislation, and is not intended to be relied on as legal advice.
Please contact Nigel G. Gilby for further information.