No adverse inference was drawn by the judge after the claimant failed to have his family doctor testify at the personal injury trial. (Fabretti v. Gill,2014 BCSC 899).
This ICBC injury case involved a car accident that occurred on the Pattullo Bridge in New Westminster. The claimant was only 12 years old at the time. He was asleep in the rear right passenger seat when a 1995 Mustang which was traveling in the opposite direction hit the claimants vehicle head on. The Mustang’s driver and passenger died from injuries sustained in the Accident. ICBC, took the position that the defendants breached their insurance policy with ICBC such that ICBC is participating in the lawsuit as a third party. ICBC contested the quantum of the claim for damages.
Lawyers for ICBC argued that the claimant’s failure to call his family doctor should be interpreted against him with respect to the finding of injury and disability. The judge disagreed setting it out this way,
[32] The family physician, Dr. Low, did not testify. ICBC submitted that I should draw an adverse inference from his failure to do so. The plaintiff submitted that Dr. Low’s testimony was not required because ICBC had available to them his entire clinical records, plus the opportunity to speak to him directly and call him as a witness if it so desired.
[33] I agree with counsel for the plaintiff. In this day and age of broad discovery of documents and free exchange of information, the possibility of an adverse opinion should have been known to ICBC, who could have subpoenaed Dr. Low (Buksh v. Miles, 2008 BCCA 318 at paras. 33-35). While the onus is always on the plaintiff to prove his case, he does not have to call every conceivable witness in order to avoid adverse inferences being drawn. I accept that the viva voce evidence of Dr. Low which would have added little to what was already in evidence by way of his clinical records.
The ICBC injury claim was based in large part on the psychological and emotional stress encountered not only from his own involvement in the car accident, but from the loss of parental support and guidance he experienced as a result of the serious physical injuries to the other members of his family. The claimant suffered soft tissue injuries to his neck, back, and shoulders that had developed into chronic pain but the court did not accept that the claimant suffered a permanent disability.
The Supreme Court found that the injury claimant was entitled to compensation for his injuries against ICBC as follows:
1. Pain and Suffering $100,000
2. Pass income wage loss $79,193 (minus appropriate income taxes)
3. Future income loss $275,000
4. Future cost of care $61,000
5. Out of pocket expenses $2,153.68
Total $517,346.68
Posted by ICBC Claims Lawyer Mr. Renn A. Holness, B.A. LL.B.– lawyer for the injured