01 Sep ICBC Fails to Prove Adverse Inference Against Injured Passenger

The case of Huang v. Li, 2020 BCSC 1096, involved a Plaintiff who was a passenger in a vehicle driven by her husband. She was injured when another vehicle turned left in front of them. Their vehicle was written off and the Defendant’s vehicle was badly damaged.

The Plaintiff suffered various physical injuries in the collision, some of which had resolved by the time of the trial. The Plaintiff primarily treated her injuries through physiotherapy, active rehabilitation and massage therapy.  She also performed exercises and stretches as recommended by her treating professionals.

The Plaintiff did not call any physiotherapist, kinesiologist or family doctor to give evidence at trial. ICBC argued that the failure of the Plaintiff to call any such evidence should result in a finding of adverse inference with respect to the extent of the Plaintiff’s chronic pain symptoms and functional limitations.

The judge noted that the Plaintiff had produced her medical and clinical records to ICBC from those treating her. If ICBC saw anything inconsistent in those records it was open to them to call evidence from those providers.

The judge found that it was unlikely that the treatment providers would have given harmful testimony regarding the Plaintiff. She declined to draw an adverse inference in this case.