Knocking Down The House of Cards – Break the Facts, Break the Opinion
When opinion evidence is introduced into court the factual underpinnings which the opinion is based on must be proven otherwise the opinion evidence is of no value. ¬†This was demonstrated in reasons for judgement released last week by the BC Supreme Court.
In the recent case (Paller v. Regan) the Plaintiff was injured in a 2009 collision. ¬†ICBC admitted the defendant was at fault but disputed the collision caused any injuries. ¬†In support of their position they relied on an orthopaedic surgeon who never examined the Plaintiff but provided an opinion that it was “unlikely” the Plaintiff’s injuries were caused by the crash. ¬†In support of this conclusion the doctor assumed this was a low speed impact. ¬†Madam Justice Fenlon rejected this evidence finding that the foundation of the opinion was not proven. ¬†In dismissing the surgeon’s evidence the Court provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†The only medical opinion evidence tendered by the defence is a report of Dr.¬†Dommisse, an orthopedic surgeon. He did not examine Mr.¬†Paller, but reviewed medical records, imaging, and the reports of Drs. Whittington and Chu. Dr.¬†Dommisse opined that it is unlikely that the accident caused a disc tear or herniation. He stated in his written report:
As outlined above, I have not had the benefit of examining Mr.¬†Paller. I am therefore unable to fully comment on Dr.¬†Chu’s report. In my opinion, however, it is unlikely that Mr.¬†Paller suffered a disc tear and/or disc protrusion at L4/5 in a motor vehicle accident of this magnitude.
In my clinical experience, I have seen approximately four lumbar disc herniations as a result of motor vehicle accidents. These accidents were higher velocity collisions, two of which occurred when the driver drove head on into a house.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Dr.¬†Dommisse assumed that the speed of Mr.¬†Regan’s vehicle was 5¬†km/h, a number provided by Mr.¬†Regan in a statement given to ICBC shortly after the accident. In cross-examination Mr.¬†Regan was unable to be precise about his speed. He agreed that he was accelerating on to the street, that his speed was moderate, and that he did not brake before the collision.
¬†¬†¬†¬†¬†¬†¬†¬†¬†I conclude that the opinions of Dr.¬†Chu and Dr.¬†Whittington are to be preferred to that of Dr.¬†Dommisse. As he acknowledged, Dr.¬†Dommisse’s opinion was restricted by lack of an examination of the plaintiff. Further, it was largely anecdotal and was based on a fact, the speed of Mr.¬†Regan’s vehicle at 5 km/h, that was not proved at trial.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Dr.¬†Jung is a psychologist who has treated Mr.¬†Paller on two occasions. He provided an opinion that Mr.¬†Paller is suffering from Anxiety Disorder, NOS, as defined in the DSM 4, the Diagnostic and Statistical Manual of Mental Disorders. Dr.¬†Jung is of the opinion that the anxiety developed as a result of a reaction to chronic injury and pain. I accept his opinion.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In summary on this issue, I find that Mr.¬†Paller’s injuries, physical and psychological, were caused by the accident on February 24, 2009.