In O’Connell v. Yung, the Plaintiff had suffered a serious brain injury in a motor vehicle accident. The Plaintiff subsequently brought an ICBC claim for several heads of damages. Although the parties agree prior to trial on an amount for certain heads of damages, some remained, such as pain and suffering, the cost of future care, and an in-trust claim for the husband of the Plaintiff. At trial, the Plaintiff did not testify, as her counsel believed her to be an unreliable historian. The Plaintiff’s case consisted of medical evidence and witnesses. The Plaintiff was awarded a substantial amount of damages. ICBC’S lawyer appealed, arguing that the award was too high, and that the Court should have drawn an adverse inference from the Plaintiff not testifying. The British Court of Appeal reduced the amount of the award, but dismissed the adverse inference argument put forth by the lawyer for ICBC.
[16] I first observe that this Court stated in Jones v. Trudel, 2000 BCCA 298 at para. 34, 185 D.L.R. (4th) 193, that the failure to address the question of whether an adverse inference should be drawn is not, in and of itself, reversible error: per Southin J.A. Mr. Justice Lambert agreed that the trial judge made no reversible error and stated, at para. 52:
In particular, it is my opinion that the trial judge was neither obliged to draw an adverse inference from the plaintiff’s failure to call the witnesses named by the appellants, nor to give reasons for not doing so. If a trial judge is asked to draw an adverse inference from a failure to call a particular witness, then whether the trial judge ought to deal with that point in her reasons must depend on an assessment of the significance of the point in the case, and on the trial judge’s concern to deal with all the points that might be thought to be significant by the losing party. I do not think that any more general rule than that is desirable.
[17] The application of that general rule is dispositive of this ground of appeal. I will nonetheless address the arguments raised in this case as they are important to the ultimate outcome of the appeal.
[27] There is no doubt that, in the absence of an explanation, it is permissible to infer that the reason a party does not testify is that their evidence would have harmed their case. The principle was forcefully stated in Lévesque v. Comeau, [1970] S.C.R. 1010 at 1012-13, 16 D.L.R. (3d) 425. That case involved a claim for damages for injuries sustained in a motor vehicle accident. The only issue was whether the accident caused the plaintiff to suffer a hearing impairment that did not manifest itself until two months after the accident. The plaintiff saw five different doctors in an effort to diagnose and treat her deafness. Only one of the doctors testified at trial. The trial judge found that the other doctors might have cast some light on the cause of her condition and drew an unfavourable inference. Pigeon J., for the majority, held that the plaintiff alone could bring before the Court the evidence and the facts necessary to establish causation and had failed to do so. He said, “[i]n my opinion, the rule to be applied in such circumstances is that a Court must presume that such evidence would adversely affect her case” (at 1012-13).
[30] The circumstances in the instant case are distinguishable from Lévesque. The judge heard six days of evidence in the plaintiff’s case that described in great detail Ms. O’Connell’s abilities before and after the accident. She heard evidence from six expert medical witnesses and from Ms. O’Connell’s husband, son, and sister, all of whom testified to her cognitive deficits. The defendants did not object when plaintiff’s counsel advised that Ms. O’Connell would not be called to testify. The defendants did not ask to examine her as an adverse witness. The defendants did read in excerpts from Ms. O’Connell’s examination for discovery. Those excerpts, as the respondent argues on appeal, demonstrated Ms. O’Connell’s unreliability. For example, she was unable to recall her son’s birth date and misstated the number of years she had been employed prior to the accident. Even in submissions, the defendants made no reference to Ms. O’Connell not testifying.
[31] In my opinion, the adverse inference advocated by the appellants cannot fairly be drawn in the circumstances of this case. First, the defendants at trial did not ask that an adverse inference be drawn. Second, the medical evidence supports the judge’s conclusion that Ms. O’Connell had limited ability to testify. Further, the evidence suggests that had Ms. O’Connell testified she may have left a false impression as to the extent of her severe brain injury. As Dr. Hirsch noted, [AB V. 4, p. 573] “On the surface, she looks fine and she has intact social skills, however, she would not be able to look after her needs properly.” Similarly, Dr. Anderson testified that Ms. O’Connell is “easily influenced by others” and tends to say whatever they want to hear. In my view, Ms. O’Connell’s limited ability to testify would have complicated rather than aided in the assessment of her claims.
[32] The judge recognized the difficulty presented by Ms. O’Connell not testifying but accepted the explanation given by her counsel. Her decision would obviously be informed by her assessment of all the evidence.
[33] In these circumstances, I consider the explanation given to be adequate and would reject the submission that the judge erred in not drawing an adverse inference from Ms. O’Connell’s failure to testify.
