1. FAILURE TO CALL TREATING MEDICAL PRACTITIONERS
It is a long recognized common law principle that the failure to produce evidence which would “naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause.”
This principle has been applied by the courts in British Columbia, the seminal case being the B.C. Court of Appeal Decision of Barker v.McQuahe.
In Barker, the Court of Appeal considered whether an adverse inference could be drawn from the failure by the plaintiff to call evidence from medical practitioners who had treated him in the capacity as consultants to his family physician. Mr. Justice Davey upheld the trial judges’ adverse inference from the plaintiff’s failure to call those treating physicians.