Witness failure to testify
Even if an injury claimant wins at trial in an ICBC injury claim, defendant’s have a right of appeal.  In this case even though the defendant lost at trial they alleged that the trial judge was wrong and should have blamed the claimant for her own injuries (failure to mitigate) and should have drawn an adverse inference after the claimant failed to call a treating doctor as a witness (Thomasson v. Moeller,2016 BCCA 14). The court of appeal dismissed this appeal upholding the award of over $600,000 to this innocent passenger.

The claimant was a passenger in a vehicle when it collided with the back of one vehicle and came into contact with another vehicle before coming to a stop. It was undisputed that the claimant sustained soft tissue injuries to her neck and back and bruising to both knees. She had low back pain and headaches, neck pain, and upper back and shoulder pain.  The claimant also experienced depressed mood, had difficulty sleeping, and complained of nausea, fatigue, poor memory and dizziness. Her trial award can be summarized as follows: Pain and suffering of $95,000; Income loss of 113,137; Loss of Future Income  of $324,000; Cost of Future Care of $57,950 and Out of Pocket Expenses of  $20,794 for a total award of $610,881.

[35]  The law relevant to adverse inferences was helpfully summarized in Zawadski v. Calimoso, 2011 BCSC 45, where Mr. Justice Voith stated:ICBC’s contention that the judge misinterpreted the adverse inference completely failed and the Courtof Appeal pointed out that a judge is not bound to draw an adverse inference from the failure of a witness or party to testify.

[149]    An adverse inference may be drawn against a party if, without sufficient explanation, that party fails to call a witness who might be expected to provide important supporting evidence if their case was sound:Jones v. Trudel, 2000 BCCA 298 at para. 32. The inference is not to be drawn if the witness is equally available to both parties and unless a prima facie case is established: Cranewood Financial v. Norisawa, 2001 BCSC 1126 at para. 127; Lambert v. Quinn (1994), 110 D.L.R. (4th) 284 (Ont. C.A.) at 287.

ICBC’s appeal on the grounds that the claimant failed to mitigate her loss also met with complete failure and the Court of Appeal was forced to recite trite law: the question of whether a refusal of treatment is reasonable or not is a question for the trier of fact.

Given the claimant’s concerted efforts in obtaining treatment, it was highly unlikely that she would have knowingly refused a treatment that was recommended to her. As the judge found, the claimant “at all times did her best to recover from the injuries so she could return to workˮ.

Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

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