ICBC Law

Adding to this site’s archived BC soft tissue injury cases, reasons for judgement were released earlier this year by the BC Supreme Court, Victoria Registry, assessing damages for chronic soft tissue injuries caused by a motor vehicle collision.

In the recent decision (Hammond v. Meeker) the Plaintiff was involved in a 2008 rear-end collision.  Fault was admitted by the rear motorist.   The Plaintiff was 7 months pregnant at the time and the impact was “substantial“.

The Plaintiff suffered from soft tissue injuries to her neck and upper back which continued to produce symptoms including headaches and pain at the time of trial.  The symptoms were expected to continue “for an indefinite period of time“.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $40,000 Mr. Justice Curtis provided the following reasons:

[20] I find on the evidence that the sum of $40,000 is reasonable and fair compensation to Ms. Hammond for the pain and suffering and loss of enjoyment of life inflicted upon her by the February 9, 2008 collision.  She has suffered a soft tissue injury to her neck and upper back, the significant symptoms of which, particularly headaches and pain and stiffness in the neck, have not resolved in the four years since the collision, and will likely continue for an indefinite period of time in the future.  While the injury and symptoms do not actually prevent any particular activity, they make many activities painful and not enjoyable to the extent that she does not do them.  This has been particularly difficult for her given her position as a home maker with two small children and for a while three with B.T. as a foster child.  On the other hand, I accept Dr. Christie’s opinion that her injury will not require surgery, nor will it make osteoarthritis more likely.

Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, assessing damages for “mostly resolved” soft tissue injuries.

In last week’s case (Vela v. MacKenzie) the Plaintiff was involved in a 2009 rear-end collision.  Fault was admitted by the rear motorist.  The Plaintiff suffered various soft tissue injuries which, while not resolved, were largely recovered by the time of trial.  In assessing non-pecuniary damages at $27,000 Madam Justice Maisonville provided the following reasons:

[69] The Court must assess damages for injury to the plaintiff.  I find those injuries to be soft tissue injuries to the plaintiff’s neck, shoulder and trapezius area which were at their worst for the first 15 months.  At that time the pain changed to stiffness and by June 2011 was mostly resolved but was continuing sporadically. I find the headaches lasted six to eight months; the back of the hand injury had resolved after approximately three months…

[87] I find in the present case that Mr. Vela has met the burden of proof with respect to injuries he sustained to his neck, upper back and trapezius area, and those to his left hand as well as the headaches that he suffered initially. I find that, with some exceptions, the pain had largely resolved within 15 months, with continuing improvement to where the plaintiff felt he was functioning at 75 per cent to 80 per cent by June 2011. He has now only occasional flare-ups. I consequently find the injuries to be more severe than submitted by defence counsel but far less severe than submitted by the plaintiff.  I find the soft tissue injuries sustained by the plaintiff to be more akin to those sustained by a plaintiff in Hussainyar v. Miller, 2012 BCSC 405 where Allan J. awarded $27,000 in non-pecuniary damages where the injuries had largely resolved within one year but continued in part to trial, some 27 months after the accident.  (See also Robinson v. Anderson,2009 BCSC 1450 $25,000 no permanent or long-term injury or pain Hsu v. Williams, 2011 BCSC 1412 $30,000 award before deduction for failure to mitigate.)  An important principle is to be fair and reasonable to both parties (See Miller v. Lawlor, 2012 BCSC 387 para. 109 considering Andrews v. Grand v. Toy Alberta Ltd., [1978] 2 S.C.R. 229; Jackson v. Lai, 2007 BCSC 1023, para.134 and Kuskis). In all the circumstances, I award $27,000 in non-pecuniary damages.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries caused by multiple collisions.

In last week’s case (Tait v. Dumansky) the Plaintiff was involved in three consecutive collisions. Ultimately the various Defendants admitted liability or were found liable at trial.  The 42 year old Plaintiff suffered soft tissue injuries to his neck, shoulder and back in the collisions.  These injuries remained symptomatic at the time of trial and were expected to continue in the future.  In assessing non-pecuniary damages at $60,000 Madam Justice Gerow provided the following reasons:

[37] In this case, all of the medical evidence is that Mr. Tait has suffered a moderate soft tissue injuries to his neck, shoulder and back. Although Mr. Tait’s symptoms have not completely resolved, and he still experiences flare-ups when he overexerts himself physically, the consensus amongst the medical experts is that Mr. Tait will likely have further improvement.

[38] Dr. Arthur, the defendants’ expert, opined on March 17, 2010, that Mr. Tait is partially disabled at this point, but should be able to get back to full duty and full hours. At trial, Dr. Arthur said he was of the opinion at that time that Mr. Tait should have been able to get back to full time duties in two to four months after he examined him if he carried out an active rehabilitation program. In cross-examination he explained that did not mean Mr. Tait would not have ongoing complaints after two to four months.

[39] Dr. Birch, Mr. Tait’s family doctor, provided an expert report and testified. In his report of July 25, 2011, Dr. Birch diagnosed Mr. Tait with muscle tension headaches and neck, shoulder, upper, mid and low back sprain and strain with significant muscle spasm. The injuries were caused by the 2007 accident and aggravated by the accidents in 2009 and 2010.  As of July 23, 2011, Mr. Tait was noted to be tender to palpation in both shoulders, upper, mid and low back bilaterally with some intermittent pain radiating down his right leg. The range of motion in Mr. Tait’s neck and low back were both moderately restricted in all directions. Although Dr. Birch expected some further improvement of Mr. Tait’s symptoms, his prognosis for full recovery is poor because of the number of injuries impacting the same area…

[46] In my view, the evidence establishes that Mr. Tait is suffering from ongoing symptoms of headaches, neck, shoulder and back pain as a result of the motor vehicle accidents. The evidence is that there has been ongoing improvement, with occasional flare-ups due to physical exertion, and that there should be additional improvement…

[51] Having considered the extent of the injuries, the fact that the symptoms are ongoing for four years with some improvement but with periods of exacerbation, the fact that the prognosis for full recovery is somewhat guarded, as well as the authorities I was provided, I am of the view that the appropriate award for non‑pecuniary damages is $60,000.

If the first thing out of a person’s mouth following a fender bender is “I’m going to sue” that likely won’t reflect all that well in a subsequent lawsuit.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the issue of credibility and claims consciousness after such an utterance was made.

In this week’s case (Hussainyar v. Miller) the Plaintiff was involved in a 2009 collision.  It was a relatively minor accident.  He suffered legitimate injuries and ultimately was awarded damages.  Prior to doing so, however, the court had some critical comments to make about the Plaintiff’s credibility which were made in part due to his post collision behaviour.

Immediately following the crash the Plaintiff and his passenger exited the vehicle, walked towards the defendant and “yelled at her that they were injured and it was her fault and they were going to take her to court“.

Madam Justice Allan provided the following comments about the Plaintiff’s credibility:

[34] Mr. Hussainyar denied making an angry outburst at the scene of the accident that he and his girlfriend were injured and that it was the defendant’s fault and he would take her to court. I have no hesitation accepting Ms. Miller’s evidence that it occurred. That incident, illustrating the plaintiff’s focus on compensation, forms the context for an examination of Mr. Hussainyar’s credibility.  He was dishonest with Dr. Cimolai, Dr. Chu, and Mr. Brancati when he told them that his employer had gone out of business and omitted to tell them that he had been working part time for months.  I do not accept his evidence that he attended the gym on more occasions than his scanned entry card indicated.  Although he told Dr. Chu he could perform household chores, he testified that was a continuing problem.  Dr. Turnbull noted that the plaintiff’s range of motion was better when he was distracted…

Reasons for judgement were released yesterday by the BC Supreme Court, Nanaimo Registry, assessing damages for chronic soft tissue injuries following a motor vehicle collision.

In yesterday’s case (Miller v. Lawlor) the 24 year old Plaintiff was involved in a ‘violent‘ rear-end collision in 2009.  Fault was admitted by the rear motorist.  The Plaintiff suffered soft tissue injuries to his shoulder, neck and back which continued to cause problems in heavier employment and recreational tasks.  The limitations were likely going to be permanent.  In assessing non-pecuniary damages at $65,000 Mr. Justice MacKenzie provided the following reasons:

[100] I agree with the plaintiff that the medical opinions have not been seriously challenged by the defendant.

[101] These expert opinions, coupled with the evidence of the plaintiff and his father and co‑workers, substantiate the plaintiff’s claim that he probably suffers from a permanent partial disability that still causes discomfort and pain mostly when he is engaged in strenuous above-the-shoulder tasks and bending over in restricted areas at work…

[110] In this case, the medical evidence is consistent in concluding that the plaintiff suffers from chronic pain and discomfort in varying degrees. I accept that his quality of life has clearly been diminished. The accident affected his ability to help at home with heavier chores such as chopping wood. He now curtails his surfing. He has become so cautious with respect to snowboarding that he does not do it at all.

[111] The plaintiff testified he continues to suffer sporadic pain and discomfort from the injuries he suffered because of the accident. I accept his evidence. I agree with Mr. McIver that the plaintiff has chronic soft-tissue symptoms that, according to the medical opinions, are likely to persist. They have continued for over three years and have affected his overall lifestyle as well as his ability to fully function at work. According to Dr. Adrian “’the prognosis for further recovery … over time is poor.” Unlike some, this plaintiff has not made numerous trips to a chiropractor or physiotherapist or massage therapist. I am satisfied this is because of his stoic personality coupled with the advice he has received from the medical personnel that his exercise regime is now the best thing he can do to minimize his symptoms. The infrequency of massage and chiropractic sessions should not be held against him.

[112] Taking into account the totality of the evidence and the authorities presented by both counsel, I am satisfied that an appropriate award of non-pecuniary damages here is $65,000.

In the latest judicial demonstration that the so-called Low Velocity Impact Defence is not the law, reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, awarding damages following a motor vehicle collision.

In yesterday’s case (Sun v. Sukhan) the Plaintiff was involved in a 2009 rear end collision.  Fault was admitted by the rear motorist.  The collision caused very little vehicle damage.  The Defendant stressed this during trial.  Madam Justice Maisonville provided the following reasons addressing the value of this evidence:

[22] The damage to the vehicle was described by the assessing adjuster, with respect to the bumper, as a plastic face all warped, and a gross total damage of $927.31 was found including all taxes. Total labour costs were estimated to be $607.20.

[23] From the pictures that were put in evidence on the summary trial, the vehicle appeared to have sustained only minor damage, but again that does not mean that the plaintiff did not suffer genuine injuries, nor is it the case that with soft tissue injuries there is always a physical presentation that can be seen or felt. The pain remains real to the victim of the accident, and his credibility is not an issue on this application.

The Court went on to find that the collision caused soft tissue injuries that largely resolved after 21 months but continued to occasionally flare.  In assessing non-pecuniary damages at $20,000 the Court provided the following reasons:

[55] In all of the circumstances, I find while the plaintiff’s injuries had largely resolved within one year and nine months, he has some ongoing complaints of pain, coupled with his inability to perform certain activities as a consequence of his fear of causing flare-ups to his lower back such as carrying heavy objects.

[56] Taking evidence as a whole, I find that the plaintiff has, on a balance of probability, proved he was injured from this accident for one year and nine months and that he presently has some minor complaints on occasion relating to his lower back and neck, but that these are not preventing the plaintiff from enjoying his pre-accident state of health and activity level.

[57] I award the following:  Non-pecuniary  damages: $20,000

For more on this topic you can click here to access my archived posts addressing ICBC’s Low Velocity Impact Policy.

While an at-fault motorist is free to deny liability when sued for damages (even in obvious circumstances) doing so can create bad optics and be met with judicial criticism.  Such a result was demonstrated in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.

In last week’s case (Eng v. Titov) the Plaintiff was stopped waiting to yield to traffic when he was rear-ended by the Defendant’s vehicle.  The Defendant denied fault in the lawsuit and maintained this position until shortly prior to trial.  Madam Justice Allan found there was no good reason to deny fault for so long and provided the following criticism:

[31] Mr. Eng also experienced significant stress as a result of the defendant’s denial of liability.  To suggest that Mr. Eng could have been, in any way, responsible for the accident, is unsustainable. Nevertheless, although ICBC did not charge Mr. Eng any deductible for the repairs to his car, the defendant denied liability in its pleadings and maintained that position through its Trial Management Brief and up until January 19, 2012. Mr. Eng is a professional driver with a Class 2 licence and is understandably proud of his driving record and driving skills. As a professional driver, he is responsible for the safety of his passengers. He was upset and frustrated that he was blamed for an accident that he could not have avoided…

The Plaintiff suffered chronic soft tissue injuries and headaches following the collision.  In assessing non-pecuniary damages at $40,000 the Court made the following findings:

[26] Soon after the accident, Mr. Eng experienced severe pain in his shoulders and neck, restricted range of motion, and headaches.  Mr. Eng’s injuries have plateaued in the last year.  He still suffers from pain to his neck and shoulders and occasional headaches about once every month. The headaches still last several hours and he needs to sleep to clear the headache. Overall, his sleep is 90% improved.

[27] The plaintiff suffered severe episodes of lower back pain that lasted two or three days.  They have not occurred for the past year. His right knee problems resolved after about six months. His irritable mood and short temper have improved although his girlfriend and best friend still find him changed for the worse in that regard.

[28] While the acute phase lasted only a few months, his condition is chronic and unlikely to improve significantly.  His neck and shoulders become tighter when he is driving as he is constantly turning to look in mirrors. His level of pain and discomfort fluctuates but he is now used to a nagging pain which is always present and he has good days and bad days.  As Dr. Koo testified, a person with chronic pain has to adjust to “the new normal”.

[29] Mr. Eng is not disabled. He is able to do most of his day-to-day activities although the pain and discomfort fluctuates from day to day.  Mr. Eng is a stoic plaintiff and he should not be penalized for continuing to work hard at a stressful job that exacerbates his neck and shoulder difficulties.

[30] Dr. Koo agreed, in cross-examination, that Mr. Eng’s best possibility for an optimal outcome would be to quit his job and devote himself to therapy and exercise.  Such a plan is clearly impractical as he needs to work and take care of his son and his parents.  However, Mr. Eng agrees that his condition would likely improve somewhat if he returned to swimming and exercise and is prepared to devote some time to those activities…

[32] His continuing injuries prevent Mr. Eng from working overtime driving shifts for which he can bid from time to time.  Overtime is given to drivers on the basis of seniority.  However, Mr. Eng readily agreed that his responsibilities to his son and parents also restrict his ability to work overtime.

[33] Mr. Teed, counsel for the plaintiff, referred me to cases involving comparable injuries where the Court awarded $45,000 to $60,000.  On the other hand, Mr. Langille relied on cases that suggest the appropriate award would be $25,000 to $30,000.   Each case is unique. I would describe Mr. Eng’s injuries, which have not resolved almost three years after the accident, as moderate soft tissue injuries. They are chronic, ongoing – albeit fluctuating – and will probably continue indefinitely. On the basis of the evidence and awards in roughly comparable cases, I conclude that a fair and reasonable award is $40,000, taking into account the extent of Mr. Eng’s initial injuries and his continuing myofascial pain in his neck and shoulders. The fluctuating pain is exacerbated by his work activities and he is restricted in engaging in physical activities that he enjoyed before the accident.

Reasons for judgement were released last week by the BC Supreme, Vancouver Registry, assessing damages for largely recovered soft tissue injuries.

In last week’s case (Hussain v. Cho) the Plaintiff was injured in a 2008 rear-end collision.  Fault was admitted by the rear motorist.  The collision caused soft tissue injuries to the Plaintiff’s neck and upper back muscles (specifically the left erector spinae and thoracic paraspinal muscles).

These injuries kept the Plaintiff off work for 6 weeks.  The injuries largely recovered in the first year following the crash but continued to cause some minimal albeit improving symptoms at the time of trial.  In assessing non-pecuniary damages at $25,000 Mr. Justice Jenkins provided the following reasons:

[21] Based on the above and all of the evidence, I find Ms. Hussain’s injuries arising from the motor vehicle accident of August 24, 2008 consisted of soft tissue injuries to the left erector spinae and thoracic paraspinals evidenced by pain in her mid and lower back, shoulder and neck and as well as headaches. Although Dr. Menzies did state that Ms. Hussain was “probably substantially recovered” from the injuries caused by that motor vehicle accident within one year, she did continue to suffer some pain and headaches for more than a year after the accident. Also, Ms. Hussain’s injuries from the February 2011 “slip and fall” were a “little” worse due to the injuries suffered August 24, 2008…

[26] Considering all of the above findings and authorities, I find the plaintiff to be entitled to a total of $25,000 in non-pecuniary damages which includes $5,000 for diminishment of homemaking capacity. Homemaking was a very significant activity for Ms. Hussain before the accident and it is clear that she struggled at that activity for some time thereafter.

Plaintiffs should not be punished with reduced damages in a personal injury claim simply because they are stoic in dealing with their injuries.  Reasons for judgement were released yesterday by the BC Supreme Court, Nanaimo Registry, discussing this in the context of a chronic soft tissue injury claim.

In yesterday’s case (Courtney v. Huthinson) the Plaintiff was involved in a 2008 rear-end collision.  The Defendant admitted fault for the crash.  The Plaintiff, a 48 year old logger, suffered a chronic soft tissue injury to his neck which produced symptoms of pain and headaches.  The symptoms continued on to the time of trial and were not expected to further recover.

Despite the chronic nature of the Plaintiff’s injuries he carried on with a stoic attitude minimizing his complaints.  In assessing non-pecuniary damages at $70,000 Madam Justice Power made the following findings with respect the Plaintiff’s injuries and his stoicism:

[16] Dr. MacKean’s opinion was that Mr. Courtney had suffered a Grade two whiplash associated disorder to the cervical spine and upper back with persistent daily neck pain greater on the right than left side, and headaches. She is of the opinion that the ongoing persistent neck pain and headaches is due to injuries sustained in the accident.

[17] Of significance Dr. MacKean noted that:

He has most likely reached the point of maximal medical improvement. It has been almost 3 years following the date of motor vehicle accident and he has not seen significant improvement over the past two years with regards to improvement in his neck pain symptoms.

[18] Dr. MacKean in her report and in her evidence noted that the disc degeneration seen in the MRI was less likely the cause of the ongoing pain he was experiencing since it was asymptomatic prior to the accident…

[23] Mr. Courtney came across in his evidence as a quiet man who was committed to his personal health and fitness and who was conscientious and proactive about pursuing his treatment options. He did not appear to exaggerate or overstate his evidence. When he made errors in his evidence for example with respect to his work history, he acknowledged them and any errors appear to be reasonable based on the passage of time, and Mr. Courtney’s knowledge. He is clearly a hardworking man who has worked through pain caused by the accident in order to provide for his family. The ongoing pain is primarily neck pain which is aggravated by activities which require neck extension and occasional headaches. I do not have any difficulty in accepting the evidence of Mr. Courtney. Based on the evidence I would characterize Mr. Courtney as a stoic individual…

[44] I have already found Mr. Courtney to be a stoic individual who does not complain and indeed his return to work post-collision is consistent with the behaviour of a hardworking, stoic individual. As noted, he should not be penalized as a result of his stoicism.

[45] In all of the circumstances, I conclude that an appropriate sum under this head is $70,000.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing damages for chronic soft tissue injuries arising from a motor vehicle collision.

In last week’s case (Milburn v. Ernst) the Plaintiff was operating a motorcycle when it was rear-ended by the Defendant’s vehicle.  The impact “resulted in the motorcycle becoming embedded in the gill of the (Defendant’s vehicle); to the point that only half of the motorcycle could be seen protruding from the front of the car“.

The Plaintiff, although he missed little time from work, suffered soft tissue injuries that were expected to pose long term limitations.  In assessing non-pecuniary damages at $50,000 Madam Justice Fitzpatrick made the following findings and provided the following reasons:

[96] After having considered the evidence from Mr. Milburn, the evidence of his independent witnesses and the medical evidence referred to above, I find as a fact that Mr. Milburn suffered the following injuries as a result of the accident:

a)       he was bruised in the pelvic region, he had wrist pain and he had some cognitive dysfunction and sleep disturbance, all of which were resolved shortly after the accident;

b)       he had some chest pain in the fall of 2007 arising from his temporary use of crutches after the knee surgery;

c)       he had severe pain in his neck, back and shoulder, all of which were largely resolved by December 2007;

d)       the disc bulges found to be present in Mr. Milburn’s spine were not caused by the accident but were rendered symptomatic as a result of the accident; and

e)       he continues to experience discomfort and mild pain in his neck and back from time to time, which increases to the point of severity depending on his level of physical activity and his level of physical fitness…

[105] I accept the evidence of Mr. Milburn that he enjoyed an active and physical life before the accident. In the aftermath of the accident, he experienced significant pain and discomfort relating to his injuries at that time which, for the most part, were resolved by December 2007.

[106] Since the accident, he has struggled to deal with the back and neck pain that arises from time to time, particularly given his employment, which is physically demanding and at times, can be quite physically demanding. He has not, however, required prescription medicine to deal with that, which speaks to the severity of the pain that he experiences from time to time. In addition, his doctors have recommended that with a proper exercise regime and with care taken in the manner of lifting and other physical activities, he should be able to minimize the difficulties that he might otherwise have. This recommendation appears to have been taken up by Mr. Milburn in that he is now regularly exercising on his own.

[107] His need of physiotherapy for some years now has been infrequent, a sign that the need for more formal treatment has not been great, despite what he describes as “flare-ups” in his condition.

[108] Based on the medical evidence of Dr. Badii, which I accept, his condition is not expected to materially improve from this time forward and as such, it is to be expected that Mr. Milburn will continue to suffer some pain in the future.

[109] In addition, I find that the accident has resulted in Mr. Milburn abandoning some of his recreational activities, such as kickboxing, snowboarding and rollerblading. In addition, some of his favourite activities have been curtailed. His love and enjoyment of motorcycling is now somewhat limited to the extent that he has to stop frequently while on long rides. In addition, acting roles with stunt assignments are no longer open to him, an activity that he particularly enjoyed although such roles were limited.

[110] I accept that the accident has also affected his personal life in that he has some pain accomplishing more physically demanding tasks around the home. I note, however, that he continues to enjoy what can only be called very physical activities, and no doubt more enjoyable activities, such as weightlifting, ATVing, scuba diving, snorkeling and horseback riding.

[111] I find that Mr. Milburn is entitled to non-pecuniary damages in the amount of $50,000.

This case is also worth reviewing for the Court’s discussion of the ‘adverse inference‘ principle.  In the course of the lawsuit the Plaintiff obtained two privileged medico-legal reports.  The Plaintiff maintained the claim of privilege through trial and did not introduce these reports into evidence.  The Defendant argued that an adverse inference should be drawn.  Madam Justice Fitzpatrick disagreed and provided the following reasons:

[87] The defence also points out that in Mr. Milburn’s list of documents, he listed two privileged medical-legal reports dated June 11 and 12, 2010. These were commissioned by Mr. Milburn’s counsel but were never served or presented at trial. The defence submits that an adverse inference should be drawn that the evidence in those reports would be contrary to Mr. Milburn’s case. Cases cited in support include Buksh v. Miles, 2008 BCCA 318 at paras. 30-35, 296 D.L.R. (4th) 608; Bronson v. Hewitt, 2010 BCSC 169 at paras. 323-337, 58 E.T.R. (3d) 14; Bouchard v. Brown Bros. Motor Lease Canada Ltd., 2011 BCSC 762 at paras. 118-122. In Buksh, at para. 31, the court cites from Barker v. McQuahe (1964), 49 W.W.R. 685 (B.C.C.A.) at 689, that in a personal injury claim, the plaintiff “ought to call all doctors who attended him in respect of any important aspect of the matters that are in dispute, or explain why he does not do so.”

[88] In my view, this is not an appropriate case to conclude that an adverse inference should be drawn. There is no evidence that the authors of those reports even saw Mr. Milburn. If so, Mr. Milburn could have been examined on the point and copies of clinical notes obtained, such as was done in Bouchard (see also para. 35 of Buksh). Mr. Milburn’s counsel has advised that this evidence was not submitted because it was of no assistance to the court, not that it was adverse to the current medical evidence. In fact, there may have been any number of reasons why the reports were not submitted and while it is possible that they contradicted the reports of Drs. Behroozi and Badii either in whole or in part, it is equally possible that they did not materially add to those reports. As was noted by the court in Bronson at para. 329, an adverse inference can only be drawn if such testimony would be superior in respect of the facts to be proved.

[89] Counsel for Mr. Milburn is entitled to prepare his case, and obtain whatever expert reports that might assist in advancing his case. To suggest that any decision not to use an unidentified expert report leads to an adverse inference in respect of any case is going well beyond the general proposition relating to adverse inferences. The disclosure process is intended to provide opposing counsel with the means of testing the claim of privilege, not to allow such claims to be made that an adverse inference should be drawn in these circumstances.