Can Failing to Call a Witness Affect Your Personal Injury Claim?

When a prospective client contacts a personal injury lawyer about a viable claim, one of the first subjects the lawyer will inquire about is witnesses. Witnesses are often essential to the success of a personal injury claim, particularly expert witnesses who can give specialized testimony to support the plaintiff’s allegations.

Witnesses are also critical to defence side lawyers, who rely on their testimony to refute plaintiff allegations and, in some cases, dispute the testimony provided by plaintiff-side experts.

In some cases, lawsuits can even hinge on the question of whether a witness should or should not have been called to provide evidence. In a recent British Columbia Supreme Court case, for example, the defence claimed that the plaintiff’s failure to call a chiropractor who treated him should be considered evidence that his claim was unjustified. Here’s what happened in that case, according to Canadian Lawyer:

Corness v. Ng

The plaintiff in this case, Corness, was sitting in his vehicle when it was struck by the vehicle of the defendant, Ng, who had gone through a red light. Corness, a ‘skilled flooring installer, with an established business,’ claimed to have suffered serious back, wrist, shoulder, neck, and psychological injuries. The shoulder pain and headaches, he alleged, lasted six months, while the wrist pain lasted six to eight months.

Corness sought $3 million in damages. He claimed that after the accident he was forced to reduce his working hours, limit heavy work, turn down new work, and hire new contractors.

The defendant disputed several facets of Corness’s case. First, they disputed the claim that Corness was experiencing ongoing symptoms. And, even if he was experiencing those symptoms, they disputed the notion that they were caused by the accident. Instead, they alleged that the symptoms were the result of a pre-existing condition that the accident had, at most, exacerbated.

Indeed, Corness had been diagnosed with lumbar degenerative disc disease and spinal stenosis some years earlier. He sought treatment, unsuccessfully, from a chiropractor. Later, he received a cortisone injection from a neurosurgeon.

According to Canadian Lawyer, ‘immediately after the injection, his back pain no longer limited his ability to install flooring, renovate homes, or participate in any of his recreational activities. In fact, Corness claimed that before the accident he worked 60 to 70 hours a week.’

The defendants also claimed that Corness’s allegations should be subject to increased scrutiny because he failed to call as a witness the chiropractor from whom he initially received treatment. This is where the case relates back to the subject of our blog – when should the failure to call a witness cast doubt on a plaintiff’s claims? Or, in legal terms, when should the court make an ‘adverse inference’ from such a failure?

The court considered the following questions when determining whether to make an adverse inference: did the plaintiff take reasonable steps to identify the potential witness? And would the witness provide meaningful evidence that would contradict the plaintiff’s claims if they were called to testify?

In Corness v. Ng, the court ruled that the plaintiff took reasonable steps to identify the chiropractor, and that the chiropractor was unlikely to provide contradictory evidence because the treatment was unsuccessful.

The court further determined that Corness’s symptoms were caused by ‘an indivisible combination’ of his pre-existing conditions and the injuries from the accident. He was awarded $1,867,000 in damages.

Contact Will Davidson LLP

If you’ve been injured in an accident and are interested in pursuing compensation, contact Will Davidson LLP today to schedule a free, no-obligation consultation with an experienced personal injury lawyer. Our team will manage every aspect of your claim, including collecting evidence, interviewing witnesses, and recruiting subject matter experts to testify on your behalf. Reach out today to learn more about our firm’s history and expertise.

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