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No Adverse Inference Where Witness in Question Called by Opposing Party

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 inference, Frech v. Langley, Mr. Justice Truscott