Clinical Record Disclosure Thwarts Adverse Inference Request
Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, placing great weight on clinical record disclosure in denying a request for an adverse inference.
In the recent case (Beggs v. Stone) the Plaintiff was involved in a 2009 collision caused by the Defendant. The Plaintiff suffered a variety of soft tissue injuries with accompanying psychological difficulties which rendered her disabled. In the course of the trial the Plaintiff did not call a variety of treating physicians including one who treated her before and shortly after the collision and treating psychologists. In declining to draw an adverse inference Mr. Justice Smith placed ‘particular emphasis‘ on the fact that fulsome disclosure of these treating physicians records was made. In finding no inference should be made the Court provided the following reasons:
[22] Counsel for the defence seeks an adverse inference from the plaintiff’s failure to call the family physician who treated her before and in the year following the accident and more particularly the psychologists who treated her both here and in Winnipeg after the accident. The factors for drawing an adverse inference are set out in Buksh v. Miles, 2008 BCCA 318, at para. 35. These include the evidence before the court, the explanations for not calling the witness, the nature of the evidence that could be provided, the extent of disclosure of the witness’s clinical notes and the circumstances of the trial.
[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.