The Judge agreed to instruct the jury, in this personal injury case, that they can draw an adverse inference from the claimant’s failure to have her treating psychiatrist provide an opinion.(Brar v. Ismail, 2018 BCSC 1487)
The claimant’s depression was a central factor in this personal injury lawsuit. She claimed the car accident significantly aggravated her pre‑existing depression and that aggravation caused chronic pain and non‑chronic pain to become more severe. The claimant’s general practitioner dealt with her depression, but minimally.
According to the judge, the opinion of the treating psychiatrist would have filled a significant gap in the evidence and the claimant provided no reason why it was not able to be adduced. The judge therefore ordered that the jury would be instructed on their ability to draw an adverse inference.
If the claimant’s pre-accident condition and post-accident progress regarding her psychological state were well documented the jury likely would not have been instructed to consider adverse inference. As stated in Beggs v. Stone, 2014 BCSC 2120, at para. 23:
 In declining to draw an adverse inference, I place particular emphasis on the fact that the clinical records of all of these professionals were disclosed to defence counsel and were reviewed by all the experts who gave their opinions in part based upon those records. The plaintiff’s pre-accident condition and post-accident progress are well documented, and there is nothing to suggest that there is anything in those records that contradicts anything that the doctors who have testified have stated.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.