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

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.

adverse inference, bc injury law, Mr. Justice Holmes, Ram v. Rai, Witness Order

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ERIK
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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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