In Frech v. Langley et al, the Plaintiff was injured in two motor vehicle accidents, and brought an ICBC claim for soft tissue injuries. The Plaintiff had a medical report written, however elected not to use this report, or have the author of the report testify at trial. ICBC’S lawyer would actually call the expert in question to testify, but still argued that an adverse inference should be drawn against the Plaintiff for failing to call the expert. The Court rejected this argument, commenting that:
[242] This is a peculiar case in that an adverse inference is sought against the plaintiff for failing to file a report from Dr. Cox, although Dr. Cox did in fact give evidence at the trial at the instance of defence counsel.
[243] It is a strange circumstance that defence counsel asks for an adverse inference that Dr. Cox would have given unfavourable opinion evidence to the plaintiff at the same time she says she did not ask Dr. Cox that same question in the witness box because she wasn’t sure what his evidence would be.
[244] Plaintiff’s counsel says that Dr. Cox was not cooperative and was in fact antagonistic and he had Dr. Hershler’s opinion to rely upon.
[245] Dr. McGraw gave evidence and his prognosis for the plaintiff was for good recovery, meaning a return to her activities of daily life, although he was unable to predict that she would be pain-free. I accept this opinion.
[246] I cannot envisage Dr. Cox having given any different opinion if his opinion had been sought either by the plaintiff or by defence counsel in cross-examination.
[247] Therefore I decline to draw any adverse inference.
