No Adverse Inference Drawn With Late Plaintiff Testimony

In Ram v. Rai, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages for pain and suffering. A dispute arose between the parties as to the duration and severity of the symptoms of the Plaintiff. Despite a repair amount under $1000, the Court still ruled that the impact was not insignificant. The Plaintiff’s mother and sister testified before the Plaintiff. It is usually the case at trial that the Plaintiff testifies first, before anyone else. ICBC’S lawyer asked the Court to draw an adverse inference, given the Plaintiff’s late testimony. The Court refused to do so, but did provide some commentary with respect to the issue of the timing of a Plaintiff’s testimony.


[35]         The defendants submit in addition that the Court should draw an adverse inference from the fact that Ms. Ram testified as the third witness in the trial, and sat in the courtroom listening to the evidence of her mother and her sister, who testified first and second.  The defendants note that this sequence did not seem to be required for scheduling reasons, because the mother and the sister remained in or around the courtroom after having given their evidence.


[36]         A plaintiff is free to call her witnesses in the order she and her counsel choose.  However, I agree with the defendants that for a plaintiff to testify after hearing other witnesses testify may affect the weight that can be given to the plaintiff’s own evidence about matters the earlier witnesses addressed.  It may be difficult for the trier of fact to be confident that the plaintiff’s account of events is her own, and is not coloured by or adapted to the preceding evidence


[37]         I note also that it may be difficult for the trier of fact to appreciate and assess the full import of the evidence of supplementary witnesses without having first seen and heard the plaintiff herself in the witness stand.  However, that observation relates to a matter of practice or effective advocacy, and not to one of law, evidence, or civil procedure. 


[43]         To my observation, when Ms. Ram had no personal knowledge about a matter, she said so; she did not borrow from the testimony she had heard her mother or her sister give shortly before.  For example, Ms. Ram testified that she did not know whether the impact of the collision had moved the Ram car forward.  She had been in the courtroom when her mother testified earlier during the same day that the impact moved the car forward by between 3 and 6 feet, shifting it into the intersection.


[44]         In short, I found each of Ms. Ram and her mother and her sister to be impressive and entirely credible witnesses.  While I have carefully considered the implications of the order in which they gave their testimony, I find no indication at all that Ms. Ram’s evidence was affected by her mother and sister having testified before she did.

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