ICBC Law

BC Injury Law and ICBC Claims Blog

Adverse Inference Drawn After Plaintiff “Chooses to Suppress” GP’s Evidence

Adding to this site’s archived database of judgments addressing adverse inferences in personal injury lawsuits, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, drawing such an inference.

In today’s case (Rogalsky v. Harrett) the Plaintiff was involved in a relatively modest collision in 2010.  Fault was admitted.  The Plaintiff suffered a variety of injuries.  In support of her claim the Plaintiff tendered “a somewhat dated” report from an independent medical practitioner.  The Plaintiff did not produce evidence from her GP despite seeing him shortly before trial for the purposes of a medical-legal assessment.  In finding an adverse inference appropriate in these circumstances Mr. Justice Verhoeven provided the following reasons:

[44]         I am very troubled by her decision to not call evidence from her doctor. As noted, she confirmed that she saw him on February 26, 2014, for examination in relation to a medical legal report. His report is not in evidence, nor are his prior reports.  The plaintiff denied seeing the recent report or being aware of its contents. I do not accept that part of her evidence.  I cannot accept that the plaintiff had no input into the decision not to adduce the report.  At a minimum, she must be aware of the optimistic opinion Dr. Burns set out in an earlier report dated April 5, 2011, also not adduced in evidence, the contents of which are referred to in Ms. Hunt’s report, which the plaintiff acknowledged reading.  In her evidence the plaintiff downplayed the efficacy of the treatment provided by Dr. Burns and in effect his opinions by stating that her appointments with him are rushed and he does not seem appropriately focussed on her concerns.  In my view the plaintiff has simply chosen to suppress and downplay Dr. Burns’ evidence because it is not helpful to her case.  This adversely affects her credibility as a witness.

[45]         Moreover, in the circumstances of this case I consider it appropriate to draw an inference that Dr. Burns’ evidence would not have been favourable to her case.

[46]         Dr. Koo was not asked to provide an updated report based upon a further more recent examination of the plaintiff.  Thus his report is somewhat dated. In addition the weight I can give to the report depends upon the weight I can give to the evidence of the plaintiff herself, in respect of which I have some reservations, as indicated.

 

Be Sociable, Share!

Tags: , , ,