In the context of ICBC injury claims, the Plaintiff will normally testify at the start of the Plaintiff‘s case, in order for the Court to have a backdrop to the ensuing testimony of lay and expert witnesses. Further, it is normally done in order to avoid submissions by defence counsel that the Plaintiff has shaped his or testimony to conform to that of the other witnesses. However, occasionally counsel for the Plaintiff will elect to call the Plaintiff at the commencement of the Plaintiff‘s ICBC injury claim, which is normally met with criticism from the Court.
In Gustafson v. Davis, the Plaintiff was injured in a t-bone motor vehicle collision, and brought an ICBC claim for damages for pain and suffering, loss of income, diminished earning capacity, loss of housekeeping capacity, and the cost of future care. Liability was admitted. Many witnesses testified before the Plaintiff, which was criticized by the trial Justice, who stated it was frustrating to listen to all of the evidence without a context.
[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.
