Tag: adverse inference

The Law of "Adverse Inference" Exlpained in BC Brain Injury Case

One of the most important decisions a personal injury lawyer needs to make when going to court is deciding which witnesses to call in support of the claim.  This is particularly true when it comes to deciding what medical experts will be called in support of an injury claim.
Typically a seriously injured plaintiff will have seen many medical practitioners (GP, specialists, physiotherapists etc.)  If you  fail to call some of these witnesses can that harm your case?  The answer is yes and is contained in the law of ‘adverse inference’.   The law of adverse inference means that the judge or jury are permitted to, in certain circumstances, presume that you failed to call a certain witness (such as your doctor) because that witness would not have helped your case.
Reasons for judgment were released yesterday by the BC Supreme Court, Nanaimo Registry, (Hodgins v. Street) explaining and applying this legal principle in a BC brain injury case.
In this case the Plaintiff was injured in a serious accident in 2004 in Courtenay, BC.   The Plaintiff suffered a moderate brain injury which was expected to have permanent consequences.  In awarding just over $650,000 in total damages for the Plaintiff’s losses Mr. Justice Kelleher summarized the Plaintiff’s injuries and their effect on her life as follows:

[81] In this case, the plaintiff has suffered constant headaches and continues to do so.

[82] Her emotional and other difficulties arising from the brain injury are permanent and affect many aspects of her life.

[83] I am persuaded that Ms. Hodgins’ pleasure in life has been significantly reduced.  Both the plaintiff’s cognitive and physical conditions limit what she can do outside the home.  Her ability to be a mother will be complicated by these injuries.  She will have a loss of opportunity of engaging with her children while they are growing up.  I accept, as well, Dr. Anton’s opinion that neurological recovery after a traumatic brain injury is usually maximal within two years and therefore further recovery cannot be expected.  I accept, as well, neurologist Dr. Donald Cameron’s opinion that she is “functionally disabled to a significant degree”.  Her fatigue, hypersomnilance and dizziness will be permanent.  She is more vulnerable than before to episodes of depression.

In reaching his judgement Mr. Justice Kellehar was asked to draw an adverse inference because the Plaintiff failed to call her GP of many years as a witness.  The judge did in fact draw this adverse inference and in doing so did a great job summarizing this area of the law as follows:

Adverse Inference

[51] The defendant argues that I should draw an adverse inference from the failure of the plaintiff to have Dr. Law, the plaintiff’s family doctor, provide a report or to call him as a witness.

[52] Dr. Law is the only physician (other than the chiropractor Dr. Kippel) who treated the plaintiff extensively before and after the accident.  A central issue in this case is the plaintiff’s pre-accident medical history and the extent to which the accident is the cause of the plaintiff’s difficulties today.

[53] Dr. Law’s clinical records were produced.  But they are, by the terms of a document agreement between the parties, simply records kept in the ordinary course of business.  They do not contain any opinion.

[54] The principle was stated in Wigmore on Evidence, (Chadbourn rev. 1979) vol. II at 192:

…The failure to bring before the Tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party.  These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which make some other hypothesis a more natural one than the party’s fear of exposure.  But the propriety of such an inference in general is not doubted.

[55] Sopinka and Lederman in The Law of Evidence in Canada, 2nd ed., (Toronto: Butterworths Canada, 1999), describe the principle at para. 6.321:

In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party.  In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away.  Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it.

[emphasis added]

[56] There have been recent developments in the application of this principle in British Columbia.

[57] In Barker v. McQuahe (1964), 49 W.W.R. 685 (B.C.C.A.), the Court of Appeal stated an adverse inference may be drawn if a litigant fails to call a witness who might be expected to give supporting evidence.  Mr. Justice Davey stated at 689 that a plaintiff seeking damages for personal injuries “… ought to call all doctors who attended him in respect of any important aspect of the matters that are in dispute, or explain why he does not do so”.

[58] That approach was modified in Buksh v. Miles, 2008 BCCA 318, 83 B.C.L.R. (4th) 162, at para. 34:

[34]      Taking the admonition of Mr. Justice Davey to the extreme in today’s patchwork of medical services raises the likelihood of increased litigation costs attendant upon more medical reports from physicians or additional attendances of physicians at court, with little added to the trial process but time and expense, and nothing added to the knowledge of counsel.  Perhaps the idea that an adverse inference may be sought, on the authority of Barker, for the reason that every walk-in clinic physician was not called fits within the description of “punctilio” that is no longer to bind us, referred to by Mr. Justice Dickson in R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, in a different context.

[59] Mr. Justice Macaulay considered this issue in Prato v. Insurance Corporation of British Columbia, 2003 BCSC 76, in circumstances similar to those before me.

[60] In that case, the defendant had access to the clinical records.  Mr. Justice Macaulay noted that in Barker, the plaintiff failed to call the specialist and the inference was that the specialist did not support the view of the general practitioner.  In Prato, the specialists were called but not the general practitioner.  His Lordship said at para. 26: “I am less concerned about the lack of supporting evidence from a general practitioner than I would be if the situation were reversed”.

[61] The defendant points to Djukic v. Hahn, 2006 BCSC 154, aff’d 2007 BCCA 203, 66 B.C.L.R. (4th) 314, where Josephson J. at para. 60 gave five reasons for declining to draw an adverse inference:

1.         Both parties have produced volumes of medical evidence from a number of doctors;

2.         The complete clinical records of these doctors were disclosed to the defence;

3.         These same records were expressly considered and subsumed in the opinions of doctors whose reports are before me;

4.         Having had disclosure of these records, it was open to the defence to interview and call these doctors as witnesses without risk of being blindsided;

5.         These were not doctors whom Mrs. Djukic consulted on a regular basis.

[62] As the plaintiff points out, the decisions in Prato, Djukic and Buksh are consistent with the initiative to streamline trials and make them less costly.

[63] However, there were two peculiarities in the Prato case that bear mentioning.  Of concern was the evidence or lack of evidence from two family doctors.  One of them, Dr. Leong, was not available to testify at trial.  Therefore, the records that were sought to be admitted, which contained opinion evidence, were not admitted.  In the circumstances, Mr. Justice Macaulay declined to infer that the doctor held views inconsistent with those of the specialist.

[64] The other physician was Dr. Hayes.  He had provided a medical report directly to an adjuster at ICBC.  (This was an action for temporary total disability benefits.)  Thus, the defendant had the opinion of Dr. Hayes but declined to call Dr. Hayes.

[65] In all the circumstances of this case, I infer that the plaintiff did not call Dr. Law because he would not have provided evidence helpful to the plaintiff’s position on these points:

1.         The plaintiff’s medical condition, both physical and psychological, at the time of the accident.

2.         The medical cause for the plaintiff’s fatigue before and after the accident.

3.         How the plaintiff progressed following the accident with the effects of the brain injury and the other soft tissue injuries.

ICBC Claims and Treating Physicians

In reasons for judgement released today Mr. Justice Holmes awarded an injured Plaintiff a total of $8,500 in damages as a result of injuries sustained in a 2005 BC car accident that occurred in 100 Mile House.
The Plaintiff was a passenger at the time.  His wife was driving.  The vehicle left the roadway and rolled onto its roof.  Liability for the accident was admitted by ICBC but the issue of damages was contested.
The Plaintiff led medical evidence that he suffered from ‘mechanical lower back pain’ amongst other injuries as a result of this crash.  He advanced a ‘significant claim of loss of earning capacity’.
The cause of the Plaintiff’s back pain was at issue at trial.  The court largely rejected the Plaintiff’s claim and found that the Plaintiff had pre-existing back pain which was exacerbated as a result of the collision.   The court found that the Plaintiff’s exacerbation ‘either resolved or significantly diminished within a few months of the accident.  The Plaintiff’s more serious complaints of back pain and spasm did not occur until months later…‘ 
The court summarized its findings at paragraph 48 as follows:
[48]            I do however accept the plaintiff did receive some injury in the motor vehicle accident of November 15, 2005.  That injury was an exacerbation of a long-standing pre-existing back injury, and he is entitled to non-pecuniary damages for the exacerbation injury which I consider was resolved within approximately a year of the November 15, 2005 motor vehicle accident.  He was restricted for a month or two following the accident in his ability to lift weights and for several months on a diminishing or sporadic basis and he was troubled by prolonged sitting or immobility.  Treatment was by continuing chiropractic and exercise.  He was able to perform his work and operate his business with minimal interference.  I assess the plaintiff’s damages at $8,500, inclusive of minimal interference with earning ability or loss of business income.
The Plaintiff did not call his treating chiropractor and his family physician to give evidence.  The court was critical of this and it appears that this was a main factor which fueled the court’s decision.  The court highlighted this fact as follows:

[37]            I conclude the plaintiff has failed to prove on a balance of probabilities the back pain he experienced after commencing the above-ground work in erecting the towers commencing in the fall of 2006 was caused or contributed to by injury he received in the motor vehicle accident of November 15, 2005.

[38]            Neither Dr. Carson, the chiropractor, nor Dr. Geerts, the family physician, gave evidence or tendered reports despite the very contentious causation issue in this action.  Dr. Carson’s records recording the plaintiff’s history and the treatment he received were highly contradictory to the plaintiff’s evidence and the explanations of the plaintiff make no sense even with allowance that he is a poor historian.

[39]            I conclude the plaintiff had an existing problem of back pain, symptomatic at the date of the motor vehicle accident, for which he was receiving chiropractic treatments prior to the subject motor vehicle accident of November 15, 2005.  I accept the motor vehicle accident exacerbated that pre-existing condition for a period of time, and the symptoms were manifested when lifting weight and by postural discomfort caused from prolonged sitting or immobility.

If you are advancing and ICBC claim and have pre-existing injuries it is a good idea to consider calling your treating doctor to give evidence to explain your pre and post accident status to the court.  Failing to do so may result in an ‘adverse inference’ where the court may conclude that your treating doctor would have given evidence damaging to your case.

BC Court of Appeal Orders New Trial After Jury Dismisses ICBC Injury Claim

The BC Court of Appeal released reasons for judgement today ordering a new trial after a Jury dismissed a claim for damages as a result of a 2002 BC car accident. In doing so the BC Court of Appeal has made some helpful comments on the law relating to “adverse inference”.
When an ICBC claim is brought to trial various witnesses are called in support of the claim. Most importantly, expert witnesses (doctors and other specialists) are often called to give evidence with respect to the extent of the injuries caused by the car accident and their prognosis. If a Plaintiff fails to call one or more of his treating doctors, the ICBC lawyers can ask the judge (or jury) to draw an ‘adverse inference’. Basically, this means that the ICBC lawyer can ask the judge to draw a negative inference from the failure to call a witness who one would expect to have something relevant to say.
Typically, people injured in BC car accidents involved in ICBC claims see several different doctors. Most people have a GP, when the GP is not available they go to walk-in-clinics. Sometimes they are treated by emergency physicians and also referred to specialists by either their GP or such appointments can be arranged privately for litigation purposes.
It could be prohibitively expensive to bring an ICBC case to trial if one was required to bring every single doctor who assessed a plaintiff after a car accident to testify. Not only would this extend the length of the trial it would also add significantly to the expense as doctors are permitted to charge fees for their legal consultation services.
In this case the Plaintiff’s were a husband and wife. Their vehicle was rear-ended by a vehicle driven by the Defendant. Fault for the accident was admitted leaving the issue of damages.
At trial evidence was presented alleging that the Plaintiff’s suffered injuries to their neck, back, knees, shoulder, with headaches and other problems.
The jury outright dismissed the lawsuits, basically finding that neither of the Plaintiff’s suffered any compensable injuries in the BC car crash.
The Plaintiff’s appealed alleging that the trial judge made 4 errors in the course of the trial, namely that:

1) the trial judge erred in allowing the respondent to seek an adverse inference for failure of the appellants to call evidence from all their doctors;

2) the trial judge erred in not allowing the clinical records to go before the jury;

3) the trial judge erred in allowing the respondent to cross-examine extensively on collateral issues in regards to Mr. Buksh; and

4) the jury verdict is perverse in finding no injury to either appellant in the face of uncontradicted evidence to the contrary.
In respect of the adverse inference, here the ICBC defence lawyer argued that the jury should draw such an inference because the Plaintiff’s did not call all of the doctors who saw them after the crash. This included walk in clinic doctors and other physicians who had limited involvement in the treatment of the Plaintiff’s. The judge instructed the Jury that such an inference ‘may’ be drawn.
Our Court of Appeal ordered a new trial. In reaching this conclusion the Court of Appeal made some helpful comments about the law of adverse inference in ICBC claims in the last 10 paragraphs of the judgement which I reproduce below:

[32] It seems to me that the tactic of asking for an adverse inference is much over-used in today’s legal environment, and requires, at the least, a threshold examination by the trial judge before such an instruction is given to the jury.

[33] A judge trying a case with a jury is bound to instruct the jury as to the applicable law, and thereby to assist the jury in its consideration of the evidence and determination of the facts. Whether an adverse inference is drawn from failure to call a witness is a question for the trier of fact. In this case, I cannot say the trial judge erred in the content of the instruction she gave the jury on the matter of adverse inferences. However, it bears reminding that the delivery of medical care is not now as it was in 1964 when Mr. Justice Davey made his comments in Barker. There is, today, a proliferation of “walk-in” medical clinics where the role of the “walk-in” clinic physician may be more limited than was the role of a family physician in 1964. Further, even people who have a family doctor may attend one or more such clinics as a matter of convenience, but still rely upon their family physician for core medical advice and treatment. The proposition stated by Mr. Justice Davey does not anticipate this present model of medical care. Likewise, the discovery process available to both sides of a lawsuit is not now as it was in 1964 when, in explaining his view on the need to call all treating physicians, Mr. Justice Davey referred to the professional confidence between a doctor and the patient. Today, the free exchange of information and provision of clinical records through document discovery raises the possibility that an adverse inference may be sought in circumstances where it is known to counsel asking for the inference that the opinion of the doctor in question was not adverse to the opposite party.

[34] Taking the admonition of Mr. Justice Davey to the extreme in today’s patchwork of medical services raises the likelihood of increased litigation costs attendant upon more medical reports from physicians or additional attendances of physicians at court, with little added to the trial process but time and expense, and nothing added to the knowledge of counsel. Perhaps the idea that an adverse inference may be sought, on the authority of Barker, for the reason that every walk-in clinic physician was not called fits within the description of “punctilio” that is no longer to bind us, referred to by Mr. Justice Dickson in R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, in a different context.

[35] In this environment, and bearing in mind the position of a lawyer bound to be truthful to the court, it seems to me there is a threshold question that must be addressed before the instruction on adverse inferences is given to the jury: whether, given the evidence before the court, given the explanations proffered for not calling the witness, given the nature of the evidence that could be provided by the witness, given the extent of disclosure of that physician’s clinical notes, and given the circumstances of the trial (e.g., an initial agreement to introduce clinical records that work contrary to the inference, or incorporation of that witness’s views or observations in the report of a witness called by the other side) a juror could reasonably draw the inference that the witness not called would have given evidence detrimental to the party’s case. Where, as here, the trial started on the basis that all records should be before the jury, and ended with a request for an instruction on adverse inferences, and when both counsel have explained the failure to call the witness or witnesses by referring to their own assessment of the utility or need for the evidence, the answer to the threshold question I have stated is not self-evidently affirmative. In this case, in my view, the judge herself should have heard the explanations, considered the degree of disclosure of that witness’s files and the extent of contact between the party and the physician, received submissions and determined whether a reasonable juror could draw the inference sought before giving the instruction to the jury for its consideration in its fact finding role. If not, the instruction had no place in her charge to the jury.

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If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

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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