In Mohamud v. Yu, the Plaintiff was injured in two motor vehicle collisions, and sought damages for both. ICBC’S lawyer admitted liability for both accidents, with the two actions being consolidated for trial purposes.
At trial, counsel the Plaintiff called an expert in chiropractic medicine, an expert in physical medicine and rehabilitation, and a dental expert in oral medicine. However, counsel for the Plaintiff did not call the Plaintiff’s very own family doctor, nor was a medical report produced. No evidence from an actual treating physician was adduced.
This raised the issue of an adverse inference to possibly be drawn by the Court. An adverse inference can be drawn if the Plaintiff, who is trying to prove his or her case, without explanation does not call a witness who can give supporting evidence for the Plaintiff.
Counsel for the Plaintiff argued that the Plaintiff’s family doctor was not called, as only the experts that were deemed to be the most necessary were called, and that a family doctor is not always the best able to give an opinion.
However, the Court disagreed, stating that her primary care doctor would be the only person to be able to provide the Court with an opinion about the Plaintiff’s condition, given the long standing relationship between the two, as well as observations made by the family doctor during the pertinent periods of time.
In drawing an adverse inference against the Plaintiff for not calling her treating physician, the Court commented :
[33] The plaintiff was a poor historian. Important parts of her evidence were inconsistent with statements she made (or did not make) to others, such as her family doctor and the experts who testified on her behalf. Some of these inconsistencies may be quite normal, but the extent of the inconsistencies here are of concern, particularly in the absence of any objective confirmatory evidence from a treating doctor or other medical professional. Most notably, the plaintiff’s family doctor, who saw her throughout these years, did not testify or provide an expert report. It is especially troubling that this is a doctor whom the plaintiff said was her long-time, trusted family physician.
[40] I certainly accept that a plaintiff is entitled to call the witnesses she considers necessary but I do not agree that the family doctor in the circumstances here would not be the best able to give an opinion. While it does appear in the clinical records that the plaintiff saw other physicians from time to time, her primary care physician is the only person who could have given the court an opinion about the plaintiff’s condition, informed by a long standing relationship and observations throughout the relevant periods of time (following not only the two accidents but also the Skytrain fall). This takes on more importance in light of the plaintiff’s evidence that she would have described all of her symptoms and complaints to her doctor and that whatever was recorded in the clinical notes reflected what she told the doctor at the time. I do not consider the fact that the defendant could have called the doctor as a witness to adequately explain this plaintiff’s failure to do so.
