In a “fact-intensive” case where no “direct-evidence” is available, a case will need to be established based on the statements of the witnesses willing to testify (hopefully truthfully) before the court. In such cases, “witness’ credibility” becomes a question of utmost importance, deciding the fate of the case.
The Adverse Inference Principle
The failure in calling a witness to testify in court could result in court drawing an “adverse inference” against the party that failed to call in the witness, especially when that witness could have provided material information in settling the case. However, the following questions are required to be considered before drawing an adverse inference:
· Legitimate Explanation
Has the party given a legitimate and plausible explanation for not calling the witness;
· Exclusive Control
Whether the party had exclusive control over the witness or could the other party have called the witness too; and
· Material Evidence
Would the witness have provided material information or would have brought in a key evidence material to the case.
In R. v. Ellis, 2013, Watt J.A., writing for the Court of Appeal for Ontario stated:
In some instances, a trier of fact may draw, and be instructed about its authority to draw, an adverse inference from the failure of a party to call a witness or produce other evidence. This "adverse inference" principle derives from ordinary logic and experience. The principle is not intended to punish a party who exercises its right not to call a witness by imposing an "adverse inference" that a trial judge, aware of the explanation for the decision, considers wholly unjustified
In a recent decision by the Court of Appeal for British Columbia, the court analysed the above principle in detail.
In Singh v. Reddy, 2019, the defendant’s appeal was dismissed by the court where the defendant asserted that the trial judge erred in not drawing an adverse inference from th e plaintiff’s failure to call a witness.
The facts of the case are as under:
The plaintiff and the defendant were both respectable members of the Indian Community in Canada. They both were attending a “Dinner-Dance” event held by a cultural society in November 2007 where this incident occurred.
The Plaintiff (Ms. Singh) alleged that the Defendant (Dr. Reddy), “intentionally” pushed her on the dance floor, causing injuries to her (Ms. Singh). No negligence was alleged.
Both the parties had their own witnesses. A list of witnesses is summarized below:
Mr. Jaykumar Sharma (husband) - Store Owner patronized by members of the society.
Mr. Balraj Jagroop
Both gave evidence consistent with Ms. Singh’s allegations.
In addition to the above, Ms. Rangaiya and her husband were initially listed to be called upon as witnesses but were not called upon to testify.
Mr. James Reddy (Husband) – At the time of incident, held a leadership position in the Society.
Mr. Chandra Palani
Both gave evidence consistent, for the most part, with Dr. Reddy’s assertions.
The trial judge found the testimony of Ms. Singh, her husband and Mr. Jagroop to be credible and reliable, while had doubts about the credibility of the defendant’s side evidence and testimonies due to inconsistencies. The trial judge found Ms. Singh’s version more probable and reliable, out of the two irreconcilable versions, holding the defendant liable for the incident.
“Defendant asserted trial judge erred in declining to draw an adverse inference from plaintiff’s failure to call witness who was in close proximity at time of incident.”
“In particular, she contends that the judge relied on hearsay evidence, characterized the evidence in an unreasonable manner, and failed to apply the criterion of whether a “legitimate explanation” existed “in the adverse inference context.”
Ms. Singh’s lawyer told the court that he had decided not to call Ms. Rangaiya as a witness because her evidence was “unknown” and she was unreliable and likely to be adverse to the plaintiff. The Court of Appeal held:
The explanation offered by the plaintiff in the case at bar was more ambiguous and diffuse than simply that Ms. Rangaiya was not likely to give evidence helpful to her case. At the end of the day it was unclear whether the witness would, if called, have refused to appear; or would have appeared but refused to testify; or would have appeared and testified untruthfully; or would have appeared and testified truthfully. It was for the trial judge to weigh the evidence, including these possibilities, and determine whether the explanation supported the drawing of the inference. I see no reversible error in her acceptance of counsel’s statement that Ms. Rangaiya was considered likely to be unco-operative and unreliable, that he had been unable to contact her and that he had no knowledge of the substance of her evidence.
The trial judge found that Ms. Rangaiya was not in the exclusive control of the Plaintiff and that the defendant could have called the witness too. Arguably, the witness was “more available” to the defendant than to the plaintiff, given that Mr. Reddy was in contact with Mr. Rangaiya shortly before trial.
The trial judge stated:
Although Mrs. Rangaiya is likely one of the best––if not the best––witnesses to provide evidence regarding the cause of Ms. Singh's fall, it is only one factor that I am to consider. In the circumstances of this case, and in particular given that Mrs. Rangaiya was at least equally available to Dr. Reddy, it does not weigh as heavily as it might otherwise.
The court dismissed the appeal.
As a claim professional, very often one would be faced with situations where no direct evidence is available to prove the allegations. Thus, right from the beginning, one must be cautious regarding the following:
Witnesses one intends to rely upon are credible and reliable.
Recorded statements, signed affidavits from these witnesses may go a long way in proving their credibility.
If one wishes to retain exclusive control over any witness (like a doctor of an injured plaintiff in a medical malpractice case), it is in the best of one’s interests to make the witness available to testify when called upon, to avoid court drawing an adverse inference for not calling upon the same. Though, the Court of Appeal stated in this case:
There is no rule that a party must call a witness who is unlikely to help in proving one’s case. The nature of an adversarial system is that every litigant is expected to put before the court only what evidence counsel believes will be probative of his or her position. There may be many reasons why counsel decides not to call a witness and it is generally not the business of the court to ascertain those reasons.