ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘adverse inference’

“It Is Not Necessary To Call Expert Evidence On Each Issue”

June 26th, 2017

In recent years expert evidence has become more common in injury litigation and it is not unusual to see litigants sometimes err on the side of overkill.  To this end helpful comments were recently released by the BC Supreme Court, Kelowna Registry, highlighting this practice and reminding litigants expert evidence can be used judiciously.

In the recent case (Truax v. Hyrb) the parties were involved in a collision and fault was at issue.  The Defendant brought an application seeking a dismissal of the lawsuit and argued that the Plaintiff failing to adduce expert engineering evidence should lead to an adverse inference.  In rejecting this suggestion Mr. Justice Dley provided the following comments about the over-use of expert evidence:

[20]         The defence argues that the failure by the plaintiff to introduce engineering evidence of the collision is “telling” and that an inference should be drawn against Mr. Truax. I agree that the absence of engineering evidence is telling – there is no need to call such expert evidence when common sense prevails.

[21]         Litigation has become a costly venture; oftentimes unnecessarily so. Litigants are far too quick to secure expert testimony when it is not required. Perhaps that is out of an abundance of caution and concern that the absence of expert evidence will be a failing of counsel.

[22]         Each case should be considered on its unique circumstances. It is trite to say that it is not necessary to call expert evidence on each issue. Expert testimony should be restricted to those matters where it would actually assist the court because the evidence is so specialized, scientific or complex. Expert evidence should not be viewed as a default or automatic step in litigation strategy.

 


Adverse Inference Drawn For “Absence of Evidence From Any Treating Doctor”

June 23rd, 2016

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, drawing an adverse inference for a Plaintiff in a personal injury lawsuit who failed to lead evidence from any treating physician.

In this week’s case (Mohamud v. Yu) the Plaintiff was involved in two collisions and sued for damages.  The Defendants admitted fault for both crashes.  At trial the Plaintiff sought over $260,000 in damages.

The Plaintiff led expert evidence in support of her case but none of these witnesses were treating physicians.  Madam Justice Fisher rejected much of the Plaintiff’s claim awarding of $61,532.  Influential in this decisions was the absence of expert evidence from treating physicians.  In drawing an adverse inference Madam Justice Fisher reasoned as follows:

[33]        The plaintiff was a poor historian. Important parts of her evidence were inconsistent with statements she made (or did not make) to others, such as her family doctor and the experts who testified on her behalf. Some of these inconsistencies may be quite normal, but the extent of the inconsistencies here are of concern, particularly in the absence of any objective confirmatory evidence from a treating doctor or other medical professional. Most notably, the plaintiff’s family doctor, who saw her throughout these years, did not testify or provide an expert report. It is especially troubling that this is a doctor whom the plaintiff said was her long-time, trusted family physician.

[34]        In these circumstances, the defendants urge me to draw an adverse inference from the plaintiff’s failure to call evidence from her family doctor…

[39] The plaintiff’s explanation for her failure to call her family doctor was that she called the witnesses she considered the most necessary, she did not have the means to obtain “every possible medical report”, the family doctor is not always the best able to give an opinion “given the era of walk-in clinics and five minute appointments” and it was open to the defendant to call the doctor, especially since the clinical notes indicate that the doctor prepared a CL19 report. On this last matter, counsel for the defendants advised the court that he not aware of such a report and had never received a copy.

[40] I certainly accept that a plaintiff is entitled to call the witnesses she considers necessary but I do not agree that the family doctor in the circumstances here would not be the best able to give an opinion. While it does appear in the clinical records that the plaintiff saw other physicians from time to time, her primary care physician is the only person who could have given the court an opinion about the plaintiff’s condition, informed by a long standing relationship and observations throughout the relevant periods of time (following not only the two accidents but also the Skytrain fall). This takes on more importance in light of the plaintiff’s evidence that she would have described all of her symptoms and complaints to her doctor and that whatever was recorded in the clinical notes reflected what she told the doctor at the time. I do not consider the fact that the defendant could have called the doctor as a witness to adequately explain this plaintiff’s failure to do so.

[41] The circumstances here are very different from those in Buksh, where the absent witnesses were not long-standing family doctors and the issue arose in the context of a trial where all clinical records had been admitted into evidence and had been before the jury. They are, however, quite similar to the circumstances in Andrews v. Mainster, 2014 BCSC 541, where the plaintiff failed to call any health care professionals who treated her before or after the accident. In that case, the court drew an adverse inference.

[42] Accordingly, I consider it appropriate in these circumstances to draw an adverse inference from the plaintiff’s failure to call her family doctor to give evidence, at least as a treating physician if not also as an expert witness.


Clinical Record Disclosure Thwarts Adverse Inference Request

November 13th, 2014

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, placing great weight on clinical record disclosure in denying a request for an adverse inference.

In the recent case (Beggs v. Stone) the Plaintiff was involved in a 2009 collision caused by the Defendant.  The Plaintiff suffered a variety of soft tissue injuries with accompanying psychological difficulties which rendered her disabled.  In the course of the trial the Plaintiff did not call a variety of treating physicians including one who treated her before and shortly after the collision and treating psychologists.  In declining to draw an adverse inference Mr. Justice Smith placed ‘particular emphasis‘ on the fact that fulsome disclosure of these treating physicians records was made.  In finding no inference should be made the Court provided the following reasons:

[22]         Counsel for the defence seeks an adverse inference from the plaintiff’s failure to call the family physician who treated her before and in the year following the accident and more particularly the psychologists who treated her both here and in Winnipeg after the accident. The factors for drawing an adverse inference are set out in Buksh v. Miles, 2008 BCCA 318, at para. 35. These include the evidence before the court, the explanations for not calling the witness, the nature of the evidence that could be provided, the extent of disclosure of the witness’s clinical notes and the circumstances of the trial.

[23]         In declining to draw an adverse inference, I place particular emphasis on the fact that the clinical records of all of these professionals were disclosed to defence counsel and were reviewed by all the experts who gave their opinions in part based upon those records. The plaintiff’s pre-accident condition and post-accident progress are well documented, and there is nothing to suggest that there is anything in those records that contradicts anything that the doctors who have testified have stated.


Adverse Inference Drawn Following Defendant’s Failure To Testify in Liability Trial

August 21st, 2014

Where fault for a collision is disputed it is very unusual for one of the parties to fail to testify.  Absent a good explanation the Court is free to draw an ‘adverse inference’ meaning an assumption that the party would not help their cause if they did indeed testify.  Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, discussing this principle.

In this week’s case (Solberg v. Carriere) the Plaintiff pedestrian was struck by the Defenant’s vehicle in a 2012 collision in Campbell River, BC.   The Plaintiff, was “acting in an animated and boisterous fashion” near the Defendant’s vehicle.   The Defendant put his vehicle in motion knowing the Plaintiff was in the vicinity who then “slipped and fell” and was run over by the vehicle’s trailer.  The Defendant argued the Plaintiff was fully at fault for the incident.  The Defendant, who was present during the trial, decided not to testify.  The Court drew an adverse inference from the Defendant’s failure and concluded that the Defendant “breached his duty of care by moving his vehicle forward without looking for himself to see that it was safe to do so, knowing that (the Plaintiff) was in the immediate area and acting foolishly”.

In drawing an adverse inference from the Defendant’s failure to testify Mr. Justice Johnston provided the following reasons:

[43]  Weighing the evidence in light of those criteria set out in McIlvenna, I conclude that in this case I will draw an inference that, if he had been called, Mr. Carriere’s evidence would not have tended to establish that he looked toward Ms. Solberg before he put his vehicle in motion.  I conclude that Mr. Carriere relied on his passengers to tell him if it were safe to move, whether it was good to go or clear.  This is consistent with his discovery evidence that no one was looking at Ms. Solberg as he was driving away, and consistent wit the evidence of his passengers who did testify.

 


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

July 10th, 2014

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.

 


Cyclist Fully at Fault For Collission Following Careless Lane Change; No Adverse Inference From Defendant Failing to Tesitfy

September 17th, 2013

Interesting reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dismissing a plaintiff’s claim following a bicycle/vehicle collision.

In last week’s case (Miles v. Kumar) the Plaintiff was cycling Eastbound along Grandview Highway in Vancouver when he moved from the right into the left lane in preparation for a left turn at an upcoming intersection.  The Defendant was travelling in this lane and a collision occurred shortly after the lane change.  Mr. Justice Bernard found the plaintiff fully at fault an in doing so reached the following conclusions:

[62]         In summary, with due regard for all the foregoing, I make the following determinations: (a) that as Ms Kumar travelled in the left lane to the point of the collision, she enjoyed the right of way; (b) that the evidence does not reasonably support a finding that Ms Kumar was, at the time, driving without due care and attention, or without reasonable consideration for other persons using the highway, or at a speed that was excessive to the conditions; (c) that when Mr. Miles entered the left lane in front of Ms Kumar his bicycle was servient to Ms Kumar’s car; and, (d) that when Mr. Miles entered the left lane he did so in breach of his statutory duties pursuant to ss. 151(a) and 151(c) of the MV Act.

[63]         In addition to the foregoing, I am also satisfied that there is no evidence upon which I could reasonably conclude: (a) that Ms Kumar ought to have known that Mr. Miles would disregard her right of way; or, (b) that there was sufficient opportunity for a reasonably careful and skilled driver in the position of Ms Kumar to avoid colliding with Mr. Miles (see Walker v. Brownlee, supra).

Interestingly the Defendant never testified at trial despite fault being disputed.   The Court was asked to draw an adverse inference but Mr. Justice Bernard refused to do so. The Court provided the following comments on this issue:

[66]         The plaintiff has submitted that the Court should draw an inference adverse to the defendants because Ms Kumar – “the only person who could have provided evidence as to her position, speed, attentiveness, driving experience, familiarity with the road, as to when she first saw Mr. Miles, and as to why she made no attempt to avoid a collision” – who had been scheduled to testify, did not do so, and without explanation. In support of this position, the plaintiff cites Bronson v. Hewitt, 2010 BCSC 169. In Bronson, the court drew an adverse inference against the defendants because one of the defendants did not testify. The court found that this defence decision deprived the court of the best evidence of conversations critical to deciding the case.

[67]         The defendants submits that Bronson is distinguishable from the case at bar. In Bronson, a positive defence was advanced; one which required proof of the content of critical conversations between the two defendants. The court observed that evaluating the defence advanced obliged the court to consider the credibility of both defendants, and the failure to call one defendant deprived the court of the best evidence of the conversations and the opportunity to assess credibility – a matter very much in issue.

[68]         In the case at bar, the defendants note that a positive defence has not been advanced. Here, the defendants simply rely upon the onus the plaintiff bears to prove its case. The defendants’ position is that the plaintiff has failed to prove the negligence alleged. In support they cite McIlvenna v. Viebig, [2012] B.C.J. No. 292, 2012 BCSC 218. In reviewing the law on adverse inferences, the court in McIlvenna stated:

[70]      The law with respect to adverse inferences in civil cases when witnesses are not called is summarized in Halsbury’s Laws of Canada [Civil Procedure II, 1st ed (Markham: LexisNexis, 2008) at para 228; Evidence, 1st ed (Markham: LexisNexis 2010), at para 14] under both Civil Procedure, and Evidence headings, respectively, as follows:

It is highly unusual for a party not to testify in a civil trial. The court may draw an adverse inference from the fact that a party fails to testify, provided that it is reasonable in the circumstances to do so. In order for an adverse inference to be drawn, there must be a dispute as to those facts concerning which the party would be competent to testify. Furthermore, if the plaintiff has failed to establish a prima facie case against the defendant, no adverse inference will be drawn should the defendant not testify. Nor is a party required to testify to rebut allegations that are plainly absurd. More generally, an adverse inference will not be drawn where the effect of drawing such an inference is to reverse the onus of proof.

There is no obligation on any party to call any particular witnesses. However, the trier of fact may draw an adverse inference from a party’s failure to call a witness whose testimony would be expected to assist the party’s case.

[69]         Having regard to the foregoing, I agree with the defendants that the effect of drawing an adverse inference against Ms Kumar would be to reverse the onus of proof; moreover, Ms Kumar was extensively cross-examined at her Examination for Discovery and the plaintiff chose to “read in” many of Ms Kumar’s answers as evidence in the plaintiff’s case.

[70]          I am satisfied that there is a critical distinction between the case at bar and that in Bronson. Here, the defendants have not advanced a positive defence and then elected not to testify in support of it. In such circumstances, the defendants are entitled to rest upon the plaintiff’s failure to prove his case. Drawing an adverse inference against the defendants for the failure to present a case with Ms Kumar as a witness would undermine the fundamental legal premise that it is the party alleging the wrongdoing who bears the onus of proof.


Non-Disclosed Medical Report Leads to Adverse Inference in Cervical Radiculopathy Injury Claim

May 10th, 2013

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, commenting on “the failure of the defence” to produce a medical report they agreed to exchange in the course of an injury lawsuit.

In this week’s case (Chekoy Sr. v. Hall) the Plaintiff was involved in a 2007 collision.  Fault was admitted by the Defendant   The Plaintiff suffered a cervical radiculopathy as a result of the crash and had non-pecuniary damages assessed at $75,000.  In the course of the lawsuit the Plaintiff agreed to attend an independent medical exam requested by the Defendant in exchange for a copy of the resulting report.  The report was never produced.  In reaching his assessment of the evidence and this development Mr. Justice Masuhara provided the following comments:

[67]         Though the plaintiff attended an independent medical examination requested by the defence.  The defence did not adduce any medical evidence challenging the plaintiff’s medical evidence.  Mr. Gertsoyg produced a letter which stated that his client would attend an independent medical exam requested by the defence in exchange for a copy of the resulting report.  Ms. Tonge wrote back agreeing to do so.  For some reason, a copy was not provided to Mr. Gertsoyg.  During the course of the trial, Ms. Tonge was requested by Mr. Gertsoyg to produce the report.  Ms. Tonge refused and when asked by Mr. Gertsoyg in court to provide the report she stated that she did not have with her.  She did not offer to get and provide it. ..

[85]         In any event, the medical opinions all support objectively the fact that Mr. Chekoy has symptoms from cervical radiculopathy.  As noted earlier the defence did not tender any medical evidence though it obtained an independent medical examination and report of the plaintiff.  The failure of defence counsel to produce the medical report which counsel had agreed to provide to plaintiff’s counsel, without an adequate explanation, allows for an adverse inference to be drawn in this regard.  The defence’s theory that the plaintiff’s neurologic problems relate to physiotherapy treatments, chiropractic treatments, or from the plaintiff lifting a tool box on the back of a pickup has not been established; I note Dr. Golin’s did not accept that theory.  While the defence raised the question of the delay in symptoms, I accept the medical evidence that there is considerable variability in symptom onset.

[86]         On balancing the totality of the evidence including the failure of the defence to produce its independent medical report, I find that the Accident is the cause of the plaintiff’s cervical radiculopathy and not from the natural progression of the plaintiff’s pre-existing degenerative disk disease, subsequent treatments, or other events.


Late Plaintiff Testimony Does Not Result In Adverse Inference in Injury Claim

November 21st, 2012

In my ongoing efforts to track judicial commentary of late plaintiff testimony in injury litigation, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, further addressing this practice.

In this week’s case (Ram v. Rai) the Plaintiff was injured in a rear-end collision.  At trial her mother and sister testified before she did.  The Defendant argued that the Court should draw an adverse inference in these circumstances.  Mr. Justice Holmes refused to do so but provided the following comments addressing the practice of late plaintiff testimony:

[36]         A plaintiff is free to call her witnesses in the order she and her counsel choose.  However, I agree with the defendants that for a plaintiff to testify after hearing other witnesses testify may affect the weight that can be given to the plaintiff’s own evidence about matters the earlier witnesses addressed.  It may be difficult for the trier of fact to be confident that the plaintiff’s account of events is her own, and is not coloured by or adapted to the preceding evidence. 

[37]         I note also that it may be difficult for the trier of fact to appreciate and assess the full import of the evidence of supplementary witnesses without having first seen and heard the plaintiff herself in the witness stand.  However, that observation relates to a matter of practice or effective advocacy, and not to one of law, evidence, or civil procedure. 

[38]         Madam Justice Humphries discussed these problems at greater length in Gustafson v. Davis, 2012 BCSC 1576 at paras. 112-116.

[39]         Mindful of the potential dangers in the sequence of witnesses in this trial, I find the situation to be a relatively unusual one in which I can be fully confident that Ms. Ram’s evidence was not contaminated in any way by her having heard her mother and her sister give evidence before her.

[40]         The three witnesses gave accounts of the collision and its effects on Ms. Ram, apparent or felt as the case may be, that were consistent with each other in their broad outline but which each spoke clearly and convincingly from the witness’s own perspective.  The mother and the sister testified about what they saw, while Ms. Ram testified about what she felt. 

[41]         For example, Ms. Ram’s mother testified in general terms that after the accident Ms. Ram spent much more time alone in her room.  Ms. Ram in her testimony did not describe her conduct in quite the same way.  She testified that after the accident she felt generally unwell and could not keep up with her usual activities, friends, school, and work.  Sometimes her headaches were bad and she would need to stay alone in a dark room.  These were not identical accounts, but they described the same response from different perspectives.

[42]         In another example, Ms. Ram’s sister testified that Ms. Ram’s posture was affected by the accident.  She testified that Ms. Ram would tend to stoop, and as she began to recover the sister would often touch Ms. Ram on the nose to remind her to straighten up.  Ms. Ram made no mention of stooping or her sister touching her nose, and referred only in passing to her posture as an aspect of the consequences of her back pain.  Ms. Ram’s evidence was in no way inconsistent with her sister’s, but spoke of the pain she herself felt, rather than the stooping the sister saw.

[43]         To my observation, when Ms. Ram had no personal knowledge about a matter, she said so; she did not borrow from the testimony she had heard her mother or her sister give shortly before.  For example, Ms. Ram testified that she did not know whether the impact of the collision had moved the Ram car forward.  She had been in the courtroom when her mother testified earlier during the same day that the impact moved the car forward by between 3 and 6 feet, shifting it into the intersection.

[44]         In short, I found each of Ms. Ram and her mother and her sister to be impressive and entirely credible witnesses.  While I have carefully considered the implications of the order in which they gave their testimony, I find no indication at all that Ms. Ram’s evidence was affected by her mother and sister having testified before she did.


No Adverse Inference Where Witness in Question Called by Opposing Party

August 22nd, 2012

Adding to this site’s archived cases dealing with the ‘adverse inference‘ principle in injury litigation, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, dealing with this principle when a Plaintiff failed to call a treating physician.

In last week’s case (Frech v. Lanlgey) the Plaintiff was injured in two collisions which caused soft tissue injuries which lingered to the time of trial.  Global damages of just over $35,000 were awarded.  In the course of the litigation the Plaintiff obtained a report from a treating physician.  The Plaintiff did not rely on the report at trial nor did the Plaintiff call the physician as a witness.  The defence did call the physician allowing the Plaintiff to have the benefit of cross-examination.  The defence argued that an adverse inference should be drawn in these circumstances.  Mr. Justice Truscott disagreed and provided the following reasons:

[242] This is a peculiar case in that an adverse inference is sought against the plaintiff for failing to file a report from Dr. Cox, although Dr. Cox did in fact give evidence at the trial at the instance of defence counsel.

[243] It is a strange circumstance that defence counsel asks for an adverse inference that Dr. Cox would have given unfavourable opinion evidence to the plaintiff at the same time she says she did not ask Dr. Cox that same question in the witness box because she wasn’t sure what his evidence would be.

[244] Plaintiff’s counsel says that Dr. Cox was not cooperative and was in fact antagonistic and he had Dr. Hershler’s opinion to rely upon.

[245] Dr. McGraw gave evidence and his prognosis for the plaintiff was for good recovery, meaning a return to her activities of daily life, although he was unable to predict that she would be pain-free. I accept this opinion.

[246] I cannot envisage Dr. Cox having given any different opinion if his opinion had been sought either by the plaintiff or by defence counsel in cross-examination.

[247] Therefore I decline to draw any adverse inference.


Adverse Inferences When Parties in an Injury Claim Fail to Testify

February 24th, 2012

Further to my previous posts addressing this topic, two sets of reasons for judgment were released recently by BC Courts addressing the law of adverse inference in the failure of parties testifying in their own injury claim.

In a recent Court of Appeal decison (O’Connell v. Yung) the Plaintiff suffered a serious brain injury as a result of a 2007 tractor-trailer collision.  The consequences of her injury caused her to “lack insight into her difficulties”.  At trial the Plaintiff did not take the stand with counsel explaining that this choice was made because “she was an unreliable historian and could not add anything to the truth of the evidence she would be giving”.  The Plaintiff’s case instead consisted of medical evidence and that of collateral witnesses.

The Plaintiff was awarded significant damages at trial.  The Defendants appealed arguing the damage awards were too high and further that the trial judge erred in not drawing an adverse inference from the Plaintiff’s failure to testify.

The Court of Appeal, while somewhat reducing the damages awarded for cost of future care, found that no error was made in not drawing an adverse inference.  Madam Justice Kirkpatrick provided the following reasons:

[16] I first observe that this Court stated in Jones v. Trudel, 2000 BCCA 298 at para. 34, 185 D.L.R. (4th) 193, that the failure to address the question of whether an adverse inference should be drawn is not, in and of itself, reversible error: per Southin J.A. Mr. Justice Lambert agreed that the trial judge made no reversible error and stated, at para. 52:

In particular, it is my opinion that the trial judge was neither obliged to draw an adverse inference from the plaintiff’s failure to call the witnesses named by the appellants, nor to give reasons for not doing so. If a trial judge is asked to draw an adverse inference from a failure to call a particular witness, then whether the trial judge ought to deal with that point in her reasons must depend on an assessment of the significance of the point in the case, and on the trial judge’s concern to deal with all the points that might be thought to be significant by the losing party. I do not think that any more general rule than that is desirable.

[17] The application of that general rule is dispositive of this ground of appeal. I will nonetheless address the arguments raised in this case as they are important to the ultimate outcome of the appeal…

[31] In my opinion, the adverse inference advocated by the appellants cannot fairly be drawn in the circumstances of this case. First, the defendants at trial did not ask that an adverse inference be drawn. Second, the medical evidence supports the judge’s conclusion that Ms. O’Connell had limited ability to testify. Further, the evidence suggests that had Ms. O’Connell testified she may have left a false impression as to the extent of her severe brain injury. As Dr. Hirsch noted, [AB V. 4, p. 573] “On the surface, she looks fine and she has intact social skills, however, she would not be able to look after her needs properly.” Similarly, Dr. Anderson testified that Ms. O’Connell is “easily influenced by others” and tends to say whatever they want to hear. In my view, Ms. O’Connell’s limited ability to testify would have complicated rather than aided in the assessment of her claims.

[32] The judge recognized the difficulty presented by Ms. O’Connell not testifying but accepted the explanation given by her counsel. Her decision would obviously be informed by her assessment of all the evidence.

[33] In these circumstances, I consider the explanation given to be adequate and would reject the submission that the judge erred in not drawing an adverse inference from Ms. O’Connell’s failure to testify.

Also of note is a recent BC Supreme Court decision (McIlvenna v. Viebig) wherein the Plaintiff was seriously injured in a collision with a vehicle.  At trial neither the Plaintiff nor the Defendant testified.  Both parties asked the Court to draw an adverse inference from the opposing side’s failure to testify.  Mr. Justice Sigurdson refused to draw such an inference and in doing so set out comprehensive reasons addressing this area of the law at paragraphs 68-74 of the reasons for judgement which are worth reviewing in full.