Court allows jury to draw adverse inference for plaintiff failure to call lay witness

In reasons released today, the court in Jin v. Spurrel, 2017 BCSC 1256, agreed with the defence and instructed the jury that they may draw an adverse inference based on the plaintiff's failure to call a lay witness who observed him both before and after the accident.  Mr. Justice Funt said:

[1]             Defence counsel seeks to have the jury instructed by the Court with respect to drawing an adverse inference as a result of the plaintiff not calling Ms. Feng Jian Zhang as his witness. Ms. Zhang is the sister-in-law of the plaintiff’s wife.

...

[3]             The plaintiff’s wife testified that she and Ms. Zhang were close and that in 2014, when she was residing in New Westminster, she would see Ms. Zhang “very many times”. Ms. Zhang would also have seen the plaintiff although less often.

[4]             There is also in evidence surveillance video which a reasonable juror may view as showing that the plaintiff does not suffer from a mental injury and he did not seem to have physical limitations.

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[10]         In my view, in the context of the claimed mental injury and the video surveillance, Ms. Zhang’s evidence would be “superior” to that of the plaintiff or of his wife who have a direct or indirect financial self-interest in the outcome of the litigation. It would also be superior to that of Mr. Qiu who only saw the plaintiff on three occasions. Ms. Zhang would have observed the plaintiff on many occasions and may have been able to testify as to whether the plaintiff, as he was shown in the video surveillance, was exceptional, typical, or otherwise.

[11]         In the circumstances, I am satisfied that a reasonable juror could draw the inference sought. I will instruct the jury with respect to the possibility of drawing an adverse inference.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/12/2017BCSC1256.htm