Adverse Inferences When Parties in an Injury Claim Fail to Testify
Further to my previous posts addressing this topic, two sets of reasons for judgment were released recently by BC Courts addressing the law of adverse inference in the failure of parties testifying in their own injury claim.
In a recent Court of Appeal decison (O’Connell v. Yung) the Plaintiff suffered a serious brain injury as a result of a 2007 tractor-trailer collision. The consequences of her injury caused her to “lack insight into her difficulties”. At trial the Plaintiff did not take the stand with counsel explaining that this choice was made because “she was an unreliable historian and could not add anything to the truth of the evidence she would be giving”. The Plaintiff’s case instead consisted of medical evidence and that of collateral witnesses.
The Plaintiff was awarded significant damages at trial. The Defendants appealed arguing the damage awards were too high and further that the trial judge erred in not drawing an adverse inference from the Plaintiff’s failure to testify.
The Court of Appeal, while somewhat reducing the damages awarded for cost of future care, found that no error was made in not drawing an adverse inference. Madam Justice Kirkpatrick provided the following reasons:
 I first observe that this Court stated in Jones v. Trudel, 2000 BCCA 298 at para. 34, 185 D.L.R. (4th) 193, that the failure to address the question of whether an adverse inference should be drawn is not, in and of itself, reversible error: per Southin J.A. Mr. Justice Lambert agreed that the trial judge made no reversible error and stated, at para. 52:
In particular, it is my opinion that the trial judge was neither obliged to draw an adverse inference from the plaintiff’s failure to call the witnesses named by the appellants, nor to give reasons for not doing so. If a trial judge is asked to draw an adverse inference from a failure to call a particular witness, then whether the trial judge ought to deal with that point in her reasons must depend on an assessment of the significance of the point in the case, and on the trial judge’s concern to deal with all the points that might be thought to be significant by the losing party. I do not think that any more general rule than that is desirable.
 The application of that general rule is dispositive of this ground of appeal. I will nonetheless address the arguments raised in this case as they are important to the ultimate outcome of the appeal…
 In my opinion, the adverse inference advocated by the appellants cannot fairly be drawn in the circumstances of this case. First, the defendants at trial did not ask that an adverse inference be drawn. Second, the medical evidence supports the judge’s conclusion that Ms. O’Connell had limited ability to testify. Further, the evidence suggests that had Ms. O’Connell testified she may have left a false impression as to the extent of her severe brain injury. As Dr. Hirsch noted, [AB V. 4, p. 573] “On the surface, she looks fine and she has intact social skills, however, she would not be able to look after her needs properly.” Similarly, Dr. Anderson testified that Ms. O’Connell is “easily influenced by others” and tends to say whatever they want to hear. In my view, Ms. O’Connell’s limited ability to testify would have complicated rather than aided in the assessment of her claims.
 The judge recognized the difficulty presented by Ms. O’Connell not testifying but accepted the explanation given by her counsel. Her decision would obviously be informed by her assessment of all the evidence.
 In these circumstances, I consider the explanation given to be adequate and would reject the submission that the judge erred in not drawing an adverse inference from Ms. O’Connell’s failure to testify.
Also of note is a recent BC Supreme Court decision (McIlvenna v. Viebig) wherein the Plaintiff was seriously injured in a collision with a vehicle. At trial neither the Plaintiff nor the Defendant testified. Both parties asked the Court to draw an adverse inference from the opposing side’s failure to testify. Mr. Justice Sigurdson refused to draw such an inference and in doing so set out comprehensive reasons addressing this area of the law at paragraphs 68-74 of the reasons for judgement which are worth reviewing in full.