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More on Responsive Opinion Evidence Admissibility

Reasons for judgement were published recently by the BC Supreme Court, Vancouver Registry, addressing responsive expert reports and the discretion of the Court to adjourn a trial to permit late expert evidence to be introduced.

In the recent case (Lennox v. Karim) the Plaintiff was injured in a 2003 collision.   87 days prior to trial the Plaintiff served a medico-legal report diagnosing the Plaintiff with a meniscal tear.  The Defendant obtained a report addressing this injury and served it on the Plaintiff.  This report was served in less than 84 days before trail.  The Plaintiff objected arguing this report was late and that it was not truly responsive.  Mr. Justice Armstrong disagreed and admitted the report finding that it was responsive, and if not, the trial should be adjourned to allow admission of the report to address the relatively late disclosure of the meniscal tear.  The Court provided the following reasons:

[38] In this case, Mr. Lennox failed to alert the defendant to the central issue of a torn meniscus. His pleadings indicated an injury of both knees without any reference in specific to the torn meniscus. This is significant in this case, because the plaintiff was under the obligation to obtain a court order to permit Dr. Stewart to testify and if that order had been applied for, the defendant would have been put on notice at an earlier time as to the issue which became central to this case.

[39] In my view the Leith report, in the words of Smith J., is not a freestanding medical opinion that ought to have been served under Rule 11-6(3). It is in its entirety a responsive opinion directed solely to one opinion of Dr. Stewart relating to the plaintiff’s medical condition, that being the torn meniscus…

[42] If I am wrong in this decision, it would have also been my further opinion that in the circumstances of this case the defendant would have otherwise been entitled to an adjournment of the trial to secure the medical report of Dr. Leith if it was not otherwise admissible under 11-6(4). It seems to me that 11-1(2) is purposely directed at requiring the plaintiff and defendant to avoid the last minute introduction of medical evidence in cases which may have proceeded for many years on a different track or a different theory. I note that neither of the experts described in the CPC report have been or are going to be called as witnesses in this case, but I am not required to deal with that issue.

[43] It seems to me that Dr. Leith’s report can simply be admitted and I can ignore those provisions which in my view are not appropriate.

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