In Westbroek v. Brizuela, the Plaintiff was injured in a motor vehicle collision, and brought an ICBC claim for damages for pain and suffering, income loss, diminished earning capacity, and future care costs. The Plaintiff would eventually be awarded a sizeable amount of over $600,000 for diminished earning capacity. The Plaintiff elected not to call his family doctor and an orthopaedic specialist at trial, causing ICBC’S lawyer to argue that the Court should draw an adverse inference. In the circumstances of this case, the Court refused to draw an adverse inference, holding that the evidence of the doctor and specialist in question would not have been superior to other experts called by the Plaintiff, nor that their evidence would been detrimental to the Plaintiff’s case.
[86] The defendant also says there should be an adverse inference drawn for the failure to produce evidence from Dr. Lowe and Dr. Jackson. Dr. Lowe is a general practitioner at the walk-in clinic Mr. Westbroek attended from time to time after the motor vehicle collision. Dr. Jackson is the orthopaedic surgeon who did the operation to relocate the ulnar nerve. The clinical records of both of these physicians were available to both parties and neither of the doctors had terribly extensive dealings with the plaintiff. Dr. Lowe saw him, at least initially, as a walk-in patient and afterwards in prescribing different medications. Dr. Jackson’s treatment was limited to the unfortunately unsuccessful nerve relocation. In these circumstances, I do not find it reasonable to infer that their evidence would be superior to that given by the doctors called by the plaintiff, or that what they might have said would have been detrimental to the plaintiff’s case. Accordingly, I do not draw the negative inference suggested.
