In Mosimann v. Guliker, the Plaintiff was injured in three motor vehicle collisions, one of which she was not wearing her seat belt. Consequently, the Plaintiff brought ICBC claims for non-pecuniary damages, as well as other types of damages. With respect to the accident in which she was not wearing a seat belt, counsel for the Plaintiff adduced expert evidence that she still would have injured herself by hitting her head on the dashboard even if she were wearing a seat belt. Counsel for the Plaintiff argued that an adverse inference should have been drawn for the Defendant’s failure to call any expert evidence with respect to the seat belt issue, however the Court rejected this notion. The Court would eventually assess a finding of 25% contributory negligence against the Plaintiff for not wearing her seat belt.
 The plaintiff’s counsel submitted that the court ought to accept Mr. Lukar’s evidence on the basis that an adverse inference could be drawn from the defendants’ failure to produce an expert report. That is not, in my view, a proper approach to opinion evidence. While it may be risky, counsel are entitled to rely on cross-examination and argument in relation to an expert witness as with any other witness. The defendants referred to Lakhani v. Samson, 1982 CarswellBC 2262,  B.C.W.L.D. 1126, 70 B.C.L.R. 379 a decision of McEachern C.J.S.C. at para. 3:
I reject the suggestion that engineering evidence is required in these cases. The court is not required to leave its common sense in the hall outside the courtroom and the evidence is clear that upon impact in both cases the Plaintiff’s upper body was flung or thrown forward striking the dashboard or the steering wheel. And common sense tells me that the restraint of a shoulder harness would have prevented that, and therefore some of the injury from having occurred.
 Sometimes experts state the obvious, in which case they are superfluous. Sometimes they do not. On those occasions, it is up to the trier of fact to decide whether the inference the expert invited has the authoritative force of training or experience, or whether it is just not helpful. Having done my best to assess Mr. Lukar’s surprising conclusion – that failure to wear a lap belt would have made no difference in this face-hit-the-dashboard collision – I am simply unable to say that I am persuaded that that is the correct inference. I assess the plaintiff’s contributory negligence at 25%.