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BC Court of Appeal – Medico-Legal Reports Are Not Mandatory for Injury Claim to Succeed

In what is one of the longest running personal injury claims I have come across, reasons for judgement were published today by the BC Court of Appeal finalizing a lawsuit started over 20 years ago.

In today’s case (Jalava v. Webster) the Plaintiff was tackled and badly injured by the Defendant who was “under the mistaken impression that Mr. Jalava had left the café without paying his bill“.

The Plaintiff started a lawsuit in 1996.  He was self represented.  He obtained an order that the Defendant pay him damages to be assessed.  The claim dragged on for years without an assessment taking place and a Chambers Judge eventually dismissed the claim noting that “ it was legally impermissible for the Court to assess damages for personal injuries without a medical-legal report“.

The Plaintiff appealed and BC’s highest court overturned the result noting that a medico-legal report was not a required part of a personal injury prosecution.

The court did, however, in the absence of medical evidence assess a token judgment of $100 noting “this matter has dragged on long enough“.

In commenting on the need of medico-legal reports in personal injury lawsuits the Court noted as follows:

[11]         First, there is no legal rule to the effect that in order to have damages for personal injury assessed, a plaintiff must adduce a medical-legal report into evidence: see Reible v. Hughes [1980] 2 S.C.R. 880. There is no doubt that such reports are very helpful and that without one, it is difficult for a judge to assess damages. In this case, for example, Mr. Jalava told the Court that he had suffered a broken clavicle and a “banged up knee” as a result of the assault, but had no details of the injuries or the financial consequences he had suffered. At this point in time, several years after the assault, it would appear no further information is likely to be brought forward.

[12]         However, since the plaintiff obtained judgment for assault, an intentional tort, it was open to the Court to award a nominal sum. Even if the tort had been negligence, the Court could have given an award of damages that would at least give some recognition of Mr. Jalava’s injuries.

[13]         I also agree with counsel that the chambers judge should not have dismissed Mr. Jalava’s claim on his own motion and without prior notice to Mr. Jalava. The plaintiff was taken by surprise and, being unrepresented, was not able to make a meaningful attempt to forestall such an order. Finally, since Mr. Jalava had already obtained judgments against the defendants, it was simply not possible to dismiss “the claim”. The claims had been reduced to judgments years ago and those judgments could not be reversed or nullified except under Rule 3-8 of the Supreme Court Civil Rules or by this court on appeal.

[14]         In all the circumstances, then, the appeal must be allowed and the chambers judge’s order set aside. Since this matter has dragged on long enough, I would also assess Mr. Jalava’s damages at $100.

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