Tag: Witness Order

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.

Further BC Supreme Court Criticism of Late Plaintiff Testimony in Injury Litigation


Recently I highlighted judicial criticism of the practice of not calling the Plaintiff as the first witness in an injury trial.  You can click here to read Madam Justice Humphries previous criticism of this practice and here for the comments of Mr. Justice McEwan.
Last week further reasons for judgement were released addressing this practice.  In last week’s case (Gustafson v. Davis) the Plaintiff was injured in a motor vehicle collision.  Several witnesses took the stand before the plaintiff testified.  In criticizing this practice Madam Justice Humphires echoed her previous comments and provided the following feedback:
[112]  Ms. Bartholomew, Ms. Hunter, Mr. Sivertson, Mr. Gustafson, a teaching colleague, and Ms. Gustafson’s family practitioner, Dr. Verbonac, were called before Ms. Gustafson went into the witness box. Much of their evidence was hearsay and consisted of subjective complaints and accounts by Ms. Gustafson to them. As the court mentioned several times to counsel for Ms. Gustafson, it would have been helpful to hear her first, before the substance of her evidence was given second hand by other witnesses while she listened to it and to the issues that arose during cross-examination.
[113]  Aside from their recounting of things Ms. Gustafson had told them, these witnesses also had their own observations to make. While their observations of Ms. Gustafson are not hearsay, that evidence was given without the benefit of Ms. Gustafson’s presentation and her first hand testimony, and was difficult to put into a meaningful context, not having heard her testify.
[114]  Counsel has the responsibility to present his case as he sees fit and the court understands if obstacles are created by scheduling difficulties for expert and out of town witnesses, or other unavailability. However, from the point of view of a trier of fact, it is not only frustrating and even confusing to listen to evidence without a context, it can have an impact on the value of all of the evidence.
[115]  The practice of calling the plaintiff first is longstanding and is a common theme in advocacy texts for reasons that resonate with, and are often written by, trial judges. I refer, for example, to § 25.8 of Fraser, Horn & Griffin, The Conduct of Civil Litigation in British Columbia, 2nd ed. (Markham, Ont: Lexis Nexis Canada Inc., 2007):
Unsurprisingly, if a plaintiff is called as the first witness for his case, he tends to have more credibility than if he is called as the last witness, because of his opportunity, in the latter situation, to tailor his evidence to the evidence of the witnesses who have gone before him.
and to s. 8.20 of the British Columbia Civil Trial Handbook, 2nd ed. (Vancouver: The Continuing Legal Education Society ofBritish Columbia, 2005):
In many cases the plaintiff will be called first, such as in a non-catastrophic injury case or a family case. One reason for this choice is that the decision­maker usually wants to see the plaintiff to get a sense of the case, and may pay less attention to other witnesses if impatiently awaiting the plaintiff.
and to Donald S. Ferguson, ed., Ontario Courtroom Procedure (Markham, Ont.: Lexis Nexis Canada Inc., 2007) at p. 815:
It is common for counsel to call their party as their first witness to avoid any submission that the party may have tailored his or her testimony to that of other witnesses.
[116]   If persuasion is the objective, and if it rests largely on the credibility of the plaintiff, counsel might give consideration to the practical and sensible course suggested by experience and this common sense advice.
Given the preference of some injury lawyers to follow this practice the Trial Lawyers Association of BC sent a request to Chief Justice Bauman asking if this was a ‘wide-spread concern‘ for trial judges and if so invited the Chief Justice to a professional development seminar to discuss the concern.   Mr. Justice Bauman responded “I have not heard it suggested that this is a matter of general concern among trial judges on this Court…I do not believe a general discussion of the issue at this time is warranted but I thank you for bringing the issue to my attention”.
I am happy to provide a copy of Mr. Justice Bauman’s letter  to anyone who contacts me and requests one.

More Judicial Critisism of Delayed Plaintiff Testimony in Injury Litigation

Earlier this year I highlighted judicial comments criticising the practice of not having a Plaintiff testify as the first witness in their personal injury claim.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, echoing these comments.
In this week’s case (Charles v. Dudley) the Plaintiff was injured in a 2008 collision.  She advanced a case alleging chronic pain and fibromyalgia.  The Court found that these claims were not proven on a balance of probabilities and ultimately awarded damages for soft tissue injuries which the Court found “resolved within a few months of the accident“.  In criticizing the Plaintiff’s delayed testimony Mr. Justice McEwan provided the following reasons:

[2] The trial proceeded in a fashion I would have described as unorthodox until recently, with the medical evidence called before the plaintiff testified. Counsel advised that they understand this to be the preferred way to run a personal injury case. I do not know where they get this idea. If persuasion of the trier of fact is the objective, the practice of leading medical opinion unattached to any factual foundation is the most awkward way to go about it. I have observed elsewhere that doctors do not subject their patients to a forensic examination. They generally assume that what the patient tells them is true and attempt to treat their symptoms. Their observations are of assistance to the trier of fact to the degree to which they reasonably conform to the facts that have been established after the plaintiff’s assertions have been tested. It is very difficult to assimilate medical evidence provisionally, that is, with no means of sorting what matters from what does not. A trier of fact obliged to hear a trial this way must go back over such evidence to put it in context. This Court is not alone in making this point. In Yeung v. Dowbiggin, 2012 BCSC 206, Humphries J. said:

[27]     Since the plaintiff was one of the last witnesses called and was in the courtroom very rarely prior to her testimony, it was difficult to assess the evidence about the effects of the accidents as I listened to the various witnesses. I had no idea who the plaintiff was, had no sense of her, and had heard no evidence about the accidents as I listened to all these witnesses. I do not know if this was a tactical decision or whether it was necessitated by schedules, but it meant the evidence I heard was all without context.

[3] In any event, owing to gaps in the scheduling of the opinion witnesses, I persuaded counsel to call the plaintiff after the first medical witness had testified to fill out the court day. The case then proceeded with interruptions of the plaintiff’s evidence to accommodate the scheduled witnesses. While occasional scheduling issues may dictate such a course, plaintiffs in personal injury cases should generally be called first, if the point is to put across a coherent case.

Timing of Plaintiff Testimony in a Personal Injury Lawsuit


While BC has no formal requirement addressing when (or even if) a Plaintiff needs to take the stand in the prosecution of a personal injury claim, the prevailing practice is for the Plaintiff to testify first.  Deviating from this practice comes with a downside as explained in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.
In last week’s case (Yeung v. Dowbiggin) the Plaintiff was involved in four separate motor vehicle collisions.  The Plaintiff’s trial lasted over two weeks.  She was one of the last witnesses to testify.  Madam Justice Humphries highlighted the following practical difficulty which arose due to this decision:
[27] Since the plaintiff was one of the last witnesses called and was in the courtroom very rarely prior to her testimony, it was difficult to assess the evidence about the effects of the accidents as I listened to the various witnesses.  I had no idea who the plaintiff was, had no sense of her, and had heard no evidence about the accidents as I listened to all these witnesses.  I do not know if this was a tactical decision or whether it was necessitated by schedules, but it meant the evidence I heard was all without context.

Contact

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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