Claimant took reasonable steps to locate his chiropractor, court ruled
Failure to call a chiropractor to testify to claimant’s pre-existing condition did not defeat his personal injury action, the B.C. Supreme Court recently ruled.
In Corness v. Ng, 2022 BCSC 334, a vehicle in the curb lane on Bridgeport Road went through a red light and collided with Ryan Shawn Corness’ vehicle. Instead of going with the paramedics directly to the emergency room, Corness went to the impound yard to retrieve the work tools that he kept in his van. At the time of the accident, Corness was a skilled flooring installer, with an established business.
Corness alleged he had suffered back, wrist, shoulder, neck, and psychological injuries because of the accident. He further claimed that his shoulder pain and headaches lasted six months, while his wrist pain lasted six to eight months. The defendants dispute that Corness had ongoing symptoms, or if he did, they disputed causation.
Corness sought payment of damages of approximately $3,000,000. The defendants argued that any of Corness’ current symptoms are caused by a pre-existing condition and the accident had, at most, temporarily exacerbated his pre-existing back condition.
A couple of years prior to the accident, Corness was diagnosed with lumbar degenerative disc disease and spinal stenosis which caused pain in his back and down his leg. Corness attended a session with a chiropractor, but it was unsuccessful in treating his pain. He later saw a neurosurgeon who administered a cortisone injection. Corness claimed that 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.
After the accident, Corness said he had to reduce his work hours and limit his heavy work. He also started to turn down work and he even hired additional contractors at his company.
The defendants urged the court to draw an adverse inference from the fact that Corness did not call the chiropractor who treated him for his back pain. They argued that since Corness had no family doctor before the accident, the chiropractor likely knew more about his history of back problems than anyone else. They claimed that Corness did not take reasonable steps to ascertain the name and address of his chiropractor.
In determining whether to make an adverse inference where a party fails to call a witness, the court referred to prior jurisprudence. The threshold is whether reasonable steps were taken to ascertain the identification of the potential witness, and whether they would provide material evidence such that the failure to call them should result in an inference their evidence would contradict the plaintiff’s claim.
The court found that the plaintiff took reasonable steps to ascertain the identification of the chiropractor. However, it was not necessary to call the chiropractor even if Corness had ascertained their contact information because their treatment of Corness was not successful, as evidenced by the fact that Corness had to later see a neurosurgeon to cure his back pain. The court said the chiropractor’s records would not likely provide information which would have contradicted the evidence regarding Corness’ pre-existing condition.
The court further found that Corness’s symptoms after the accident were an indivisible combination of his pre-existing condition and the injuries he sustained from the accident. The court concluded that the defendants were liable for damages and decided to award $1,867,000 to Corness.
