Tag: O’Connell v. Yung

Adverse Inferences When Parties in an Injury Claim Fail to Testify

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.

Recognizing the Real Financial Toll of Catastrophic Injuries


(UPDATE: February 3, 2012The below cost of care award was reduced somewhat in reasons for judgement released by the BC Court of Appeal)
Important reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, recognizing the real financial toll that catastrophic injuries can cause.
In today’s case (O’Connell v. Yung) the Plaintiff was seriously injured in a 2007 motor vehicle collision.   Her car was struck by a tractor-trailer pinning her vehicle against the Massey Tunnel.  The injuries were extensive and these included traumatic brain injury, a cervical spine fracture, fractures to her right femur, ankle, tibia, fibula, toes, ribs, nose and sternum.  The Plaintiff also sustained injury to her spleen and liver. These left the Plaintiff with chronic pain and serious dysfunction requiring a high level of daily supervision and care.
The Plaintiff initially received such care from a ‘personal care worker’, however she was uncomfortable having strangers tend to her for prolonged periods and eventually her husband of many years took over the role as primary caregiver.  This amounted to full time work.
The biggest issue at trial was the Plaintiff’s accident related future care needs.  The Plaintiff sought compensation for the fair value of hiring individuals to provide her with the care she needed.  The Defendant argued that “any award for the future cost of personal care must be reduced to take into account the fact that Mr. O’Connell is present in the household to provide supervision and guidance and a contingency can be factored in to address the possibility that he will at some point be unable or unwilling to continue to provide this care“.
Madam Justice Fisher rejected this argument and went on to award the Plaintiff $2.25 million dollars to compensate her for her  future care needs.  In doing so the Court provided the following useful reasons:

[124]     I do not accept the defendants’ submission that an award for the cost of future personal care must be reduced to take into account the role Mr. O’Connell plays in providing supervision and guidance to Ms. O’Connell.  Ms. O’Connell is entitled to be compensated for the cost of care that is medically required. As Groves J. held in Cojocaru, the law does not permit the defendants to pass off their responsibility to provide appropriate future care by suggesting that Ms. O’Connell can and should rely on her husband to take care of her.  A husband is not expected to care for his injured wife on a gratuitous basis: see Andrews at p. 243.

[125]     The same principle was expressed in Vana v. Tosta, [1968] S.C.R. 71, where one of the issues involved an award for the cost of future housekeeping services.  The majority of the court stated at p. 75:

It is trite law that a wrongdoer cannot claim the benefit of services donated to the injured party. In the present case it amounts in my judgment to conscripting the mother and mother-in-law to the services of the appellant and his children for the benefit of the tortfeasor and any reduction of the award on this basis is and was an error in principle.

[126]     In McTavish v. MacGillivray, 2000 BCCA 164, the court was also dealing with an award for the loss of housekeeping capacity, both past and future, and interpreting and applying the principles set out in Kroeker v. Jansen.  At para. 43, Huddart J.A. stated:

.. the majority in Kroeker quite clearly decided that a reasonable award for the loss of the capacity to do housework was appropriate whether that loss occurred before or after trial. It was, in my view, equally clear that it mattered not whether replacement services had been or would be hired.

[127]     While Kroeker was restricted to housekeeping services and, as Huddart J.A. noted, the court did not adopt the analogy with future care as a general rule, it is my opinion that the same principle can be applied in the circumstances of this case with respect to personal care services that may or may not be hired in the future.

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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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