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The Health Care Costs Recovery Act and Your BC Personal Injury Claim

Written by admin on . Posted in Civil Procedure, Tort Reform.

Very important legislation is coming into force in April 1, 2009 that applies to many BC Personal Injury Claims.   The new legislation is the Health Care Costs Recovery Act (and the Health Care Costs Recovery Regulation) and all BC Personal Injury Lawyers and people advancing their own BC Personal Injury Claims need to be familiar with this new law.
In a nutshell this act applies to all BC Injury Claims except for claims where the defendant is insured with ICBC, litigation under the Tobacco Damages and Health Care Costs Recovery Act and WCB Claims.   If you are advancing an applicable BC Personal Injury Claim after April 1 and are covered by MSP you must advance a claim for the cost of past and future health care services.  
Section 3 of the act requires that people with applicable claims, whether or not they have a lawyer, must “include a health care services claim in that legal proceeding”
Section 4 requires Notice to the Government after you start your lawsuit in BC Supreme Court.  This applies whether or not you have a lawyer for your BC Personal Injury Claim.  Spcifically this section states that the government must be notified of applicable claims “within 21 days after commencing a legal proceeding referred to in section 3(1), written notice of the legal proceeding must be given to the government“.
Section 5 of the act is perhaps the most important which stats that “a legal proceeding referred to in section 3(1) must not be discontinued or dismissed by consent unless the consent of the minister is filed with the court.”
This Act requires people with applicable BC Personal Injury Claims to advance a claim on behalf of the Government for recovery of their past and future health care costs and to not settle a claim without the governments permission first.  
In addition to the above the Act has some unique sections requiring co-operation with the government and giving the government significant power to intervene in current lawsuits.  This law will change the way BC Personal Injury Claims are prosecuted and advanced by lawyers and non-lawyers and it is vital that people become quickly familiar with this new law.
One of the biggest concerns I have as a BC Personal Injury Lawyer is that this Act will create a lot of red tape in the settlement of BC personal injury claims.  I have developed a pro-active practice of notifying the government of applicable claims even before the legislation requires to minimize the red tape that will now be involved with claim settlement.  If you are advancing an applicable claim, with or without a lawyer, I suggest you do the same because the Governments involvement in the settlement process will undoubtedly add delay to the settlement of many BC personal injury claims.
If you have an active BC Personal Injury Claim that is not settled by April 1, 2009 or if you advance a Claim after April 1, 2009 you need to comply with this new law.  If you have a lawyer you should make sure that your Injury Claim Lawyer is familiar with this new law as it may apply to your claim.  Lastly, if you are advancing your own Injury Claim and have questions about how this will effect your claim seek legal advice promptly because this act imposes significant obligations that must be complied with.

ICBC Injury Claims, Trials and Costs

Written by admin on . Posted in Civil Procedure, Uncategorized. 56 Comments on ICBC Injury Claims, Trials and Costs

I’ve written many times about the costs consequences of ICBC Claims and Supreme Court Trials where a formal offer of settlement is made under Rule 37B.  What about when no offer is made, what are the costs consequences then?  In these circumstances Rule 57(9) of the Supreme Court Rules governs which holds that “Subject to subrule (12), costs of and incidental to a proceeding shall follow the event unless the court otherwise orders”
What this basically means is to the victor goes the spoils.  If you bring an ICBC Injury Claim to trial in BC Supreme Court and are successful unless the court otherwise orders you will be entitled to your ‘costs’.  But what happens if you are only partially successful in your ICBC Injury Claim?  Can you still get your full costs or can these be split?  
Reasons for judgement were released today (Heppner v. Zia) dealing with this issue.  In today’s case the Plaintiff brought an injury claim following a 2004 motor vehicle collision in New Westminster, BC.  Prior to trial the Plaintiff was seeking to settle her ICBC Injury Claim for $349,900 and ICBC was offering $20,000.
After a 15 day trial the court found that the Plaintiff was 50% responsible for the collision.  In addition to being found partially at fault, the Court rejected the Plaintiff’s claim that she sustained a disc herniation as a result of the collision and that she was permanently disabled from her employment as a result of the collision.  In the end the Plaintiff was awarded damages of just over $45,000 for her soft tissue injuries.
In the normal course the Plaintiff would be entitled to her costs as she was awarded an amount greater than ICBC’s settlement offer and an amount greater than the Small Claims Court monetary jurisdiction.  ICBC, however, argued that they were largely successful in defending the claim in both proving the Plaintiff was partially at fault and in refuting her claim that her disc herniation was related to the collision  ICBC argued that the costs should be apportioned accordingly.  Mr. Justice Cohen of the BC Supreme Court agreed.
In concluding that the Plaintiff should be deprived of her costs for that portion of the trial which involved the claim of an accident related disc herniation Mr. Justice Cohen summarized and applied the law as follows:

[11]            In Sutherland v. The Attorney General of Canada, 2008 BCCA 27 at para. 31, Finch C.J.B.C., for the Court, said, as follows:

The test for the apportionment of costs under Rule 57(15) can be set out as follows:

(1)        the party seeking apportionment must establish that there are separate and discrete issues upon which the ultimately unsuccessful party succeeded at trial;

(2)        there must be a basis on which the trial judge can identify the time attributable to the trial of these separate issues;

(3)        it must be shown that apportionment would effect a just result….

[16]            Upon a review of the authorities submitted by both sides, particularly the recent decision of Romilly J. in Shearsmith v. Houdek, 2008 BCSC 1314, I am satisfied that the issue of the plaintiff’s disc herniation is a discrete issue upon which the plaintiff did not succeed.

[17]            In the case at bar, the Court noted at para. 290 of the Reasons, that the main thrust of the plaintiff’s claim for damages was that she sustained a low back soft tissue injury that eventually lead to disc herniation surgery that has rendered her permanently disabled, and that this outcome was due directly to the accident.

[18]            At paras. 291-292 of the Reasons, the Court said, as follows:

[291]    The defence position is that given the history and the onset of symptoms of low back pain; the plaintiff’s prior history of work related low back injuries and complaints; that the plaintiff’s first onset of low back pain after the accident was caused by the same movement of bending forward as caused the plaintiff’s work related onset of low back pain; and that the plaintiff was working as hard after the accident as she was before the accident, it is impossible to conclude that the accident caused the plaintiff’s chronic low back pain.

[292]    The essence of the defence based on causation is that the plaintiff did not complain about low back pain until about two months after the accident, and then only intermittently thereafter.  The defendants assert that a significant increase in the plaintiff’s low back symptoms and the onset of new symptoms can actually be dated from the plaintiff’s fall down the stairs in her home in early March 2005.  It was this event, claim the defendants, that caused the plaintiff to undergo disc herniation surgery and is the real reason why she did not return to her occupation as a nurse’s aid.

[19]            At para. 317 of the Reasons, the Court concluded as follows:

[317]    In the result, I find that the evidence does not establish a temporal link between the accident and the onset of the plaintiff’s low back symptoms ultimately leading to the diagnosis of disc herniation and disc herniation surgery.  In my opinion, the plaintiff has failed to prove on a balance of probabilities that the accident caused or contributed to the plaintiff’s disc herniation.  She has failed to prove that her disc herniation would not have occurred but for the negligence of the defendants.

[20]            Thus, in the circumstances of the case, I disagree with the plaintiff’s contention that the plaintiff’s disc herniation was not a discrete issue, but merely part of the overall burden on her to prove the extent of the injuries that she suffered as a result of the accident.

[21]            I also disagree with the plaintiff that it is not possible to attribute the time taken up in dealing with the issue of the plaintiff’s disc herniation, as opposed to the time taken up dealing with the plaintiff’s other injuries. 

[22]            I find that the plaintiff should be denied her costs associated with this discrete issue.

The Court then turned to the issue of liability and the fact that ICBC was successful in proving the Plaintiff 50% at fault for the collision.  Mr. Justice Cohen held that in these circumstances the Plaintiff’s trial costs should be reduced by 50% and summarized and applied the law as follows:

 

[25]            Finally, I turn to the matter of s. 3(1) of the Negligence Act, R.S.B.C. 1996, c. 333 (the “Act”).  The defendants submit that the costs awarded in favour of the plaintiff ought to be reduced by 50% to reflect the court’s finding on liability. 

[26]            Section 3(1) of the Act states:

Unless the court otherwise directs, the liability for costs of the parties to every action is in the same proportion as their respective liability to make good the damage or loss.

[27]            The plaintiff says that an application of s. 3(1) would work an injustice in this case.  Her position is that the issue of liability occupied relatively little time at the trial, perhaps no more than a day or two.

[28]            In Moses v. Kim, 2007 BCSC 1820, the plaintiff sought 100% of his taxable costs, notwithstanding that he was held 65% responsible for the accident.  At para. 13, Gray J., as part of her analysis of whether she should use her discretion to depart from the usual rule, set out the following criteria to be applied by the Court:

(a)        the seriousness of the plaintiff’s injuries;

(b)        the difficulties facing the plaintiff in establishing liability;

(c)        the fact that in settlement negotiations the amount offered was substantially below the ultimate amount;

(d)        whether the plaintiff was forced to go to trial to obtain recovery;

(e)        the costs of getting to trial;

(f)        the difficulty and length of the trial;

(g)        whether the costs recovery available to the plaintiff, if costs are apportioned according to liability, will bear any reasonable relationship to the party’s costs in obtaining the results achieved;

(h)        the positions taken by the parties at trial, in particular whether the positions taken were appropriate and reasonable in the circumstances;

(i)         whether the defendants made any settlement offers;

(j)         the ultimate result of the trial; and

(k)        whether the plaintiff achieved substantial success that would be effectively defeated if costs were awarded pursuant to s. 3(1) of the Negligence Act.

[29]            In the instant case, the Court found that the plaintiff sustained mild to moderate soft tissue injuries as a result of the accident, and held that the general damage award should be based on the fact that her condition had improved and recovered to the stage that by a year post-accident she felt well enough to return to work on a gradual basis.  Hence, the plaintiff’s general damage award was substantially less than the amount she sought.

[30]            As well, the award received by the plaintiff for general damages was substantially less than that offered by her prior to the trial ($349,000), and somewhat closer to the amount offered by the defendants ($20,000).  Moreover, the factors of whether the plaintiff was forced to go to trial to obtain recovery, the costs of getting to trial, and the difficulty and length of the trial are applicable to both sides. 

[31]            Finally, given the ultimate result of the trial, and the fact that, in my view, the plaintiff did not achieve substantial success that would be effectively defeated if costs were awarded pursuant to s. 3(1) of the Act, I find that there are no features of the action to warrant departure from the usual rule. 

[32]            Accordingly, the plaintiff’s costs shall be reduced by 50% to reflect the division of liability.

ICBC Injury Claims, Medical Exams and Access to Information

Written by admin on . Posted in Civil Procedure, independent medical exams.

When advancing an ICBC Injury Claim ICBC can typically arrange an ‘independent medical exam’ to assess your injuries.   This is usually done either through the power given to ICBC under the Insurance (Vehicle) Regulation or pursuant to Rule 30 of the Supreme Court Rules.
When ICBC sends you to a doctor for an ‘indpendent’ examination the physician usually takes notes and often authors a report summarizing his/her opinion of collision related injuries.  Normally ICBC Injury Claims Lawyers negotiate the terms of these examinations to permit their client to have access to the medical examiners notes.
What if these terms are not discussed prior to the exam, are you entitled to have access to the notes that ICBC’s doctor generates as a result of the visit or can ICBC claim litigation privilege over these notes?
Reasons for judgement were released today (McLeod v. Doorn) dealing with this issue.  In today’s case ICBC arranged to have the Plaintiff examined by a physician.   The Plaintiff did not negotiate what access she would have to the physicians records when she agreed to this assessment.  After the exam the Plaintiff sought access to the doctor’s clinical records and ICBC refused to provide these on the basis that the notes were protected by litigation privilege.
The Plaintiff brought an application in Court to be granted access to these records and in granting the application Master Caldwell summarized and applied the law as follows:

[4] I have considered counsel’s submissions extensively; however, I am consistently drawn back to paras. 12 and 13 of the reasons of Finch J.A. (as he then was) in Stainer v. Plaza, [2001] B.C.J. No. 4:

In my respectful opinion this condition is too broadly expressed.  Some reports prepared by or for a doctor performing an independent medical examination may not be protected by a solicitor’s brief privilege.  Ever since Milburn v. Phillips (1963), 44 W.W.R. 637 (B.C.S.C.) our courts have recognized that statements made by a plaintiff to a doctor conducting an independent medical examination under compulsion of court order may be ordered to be communicated to the plaintiff’s solicitor.  And, insofar as the examining doctor makes observations or findings on physical examination, he becomes to that extent a potential witness as to matters of fact.  That there can be no property in a witness of fact is well settled: Harmony Shipping Co. S.A. v. Davis.[1979] 3 All ER (C.A.).

It therefore appears to me to be within the proper exercise of the discretion afforded under Rule 30 to impose, as a condition of ordering an independent medical examination, delivery up to a plaintiff of the examining doctor’s notes that record any history given to him by the plaintiff on the examination, and any notes that record the doctor’s observations or findings on physical examination.  It would not usually, however, be fair to go further, and to require the defendant or third party to disclose any documents prepared by the doctor which contain his confidential opinions or advice to the lawyer who requested the examination, whether for the purposes of trial preparation, cross-examination at trial, or otherwise.

[5] Defence counsel points out that there was no order made under Rule 30 and, therefore, this reasoning does not apply; however, because the plaintiff agreed to go without an order, she is stuck.  I fail to see how that can be correct.  Rule 1(5) states that the object of the Rules is to “secure the just, speedy and inexpensive determination of every proceeding on its merits”.  Requiring a court order in the circumstances of this case hardly fits with such intention.

[6] I am of the view that the notes that record any history given to Dr. Piper and Mr. Kerr by the plaintiff at the examinations and any notes of those two professionals which record their observations or finding on physical examination, including raw test data, are to be produced to plaintiff’s counsel in the manner outlined in para. 4 of the proposed order.

ICBC Injury Claims, Video Surveillance and Mistrials

Written by admin on . Posted in Civil Procedure, Jury Trials.

Reasons for judgment were released today by the BC Supreme Court ordering a mistrial following a trial by jury.
In today’s case (Oberreiter v. Akmali) the Plaintiff sued for injuries after she was struck by a vehicle while riding her bicycle in North Vancouver in 2004.  Fault was not at issue, rather the trial focused solely on quantum of damages (value of the ICBC Injury Claim).  Following trial the jury awarded the Plaintiff approximately $118,000 in damages.  Prior to having the judgement entered the Plaintiff applied for a mistrial.  
The key facts giving rise to the application for a mistrial are as follows:

              After the trial was completed and the jury had been discharged, the plaintiff’s counsel discovered that the DVD contained approximately ten minutes of video which had not been shown to the jury.  Through an unintentional error in editing, the DVD which was marked as an exhibit contained images which had not been shown to the jury; had not been seen by counsel or myself; and had not been admitted into evidence. 

[7]                The issue is whether the plaintiff is entitled to a mistrial because material not admitted into evidence was inadvertently included in an exhibit available to they jury during its deliberations.

In granting the mistrial, Mr. Justice Kelleher of the BC Supreme Court gave the following reasons:

 

[10]            Where an irregularity such as the inadvertent inclusion of non-admitted material in exhibits left with the jury occurs, it is usually identified during the course of the trial.  When that occurs, the court must consider all possible actions to remedy potential prejudice before ordering a mistrial.  It may be that such an irregularity could be corrected with an instruction to the jury: seeGemmell v. Reddicopp, 2005 BCCA 628, 48 B.C.L.R. (4th) 349.

[11]            Where the irregularity cannot be cured and the trial judge is satisfied that it may have a prejudicial effect impacting the result of the trial, a mistrial is the appropriate remedy: see de Araujo v. Read, 2004 BCCA 267, 29 B.C.L.R. (4th) 84.  In that case, Mr. Justice Thackray observed at para. 68:  “…a new trial may be ordered where trial irregularities may have influenced the verdict or award of the jury… “.

[12]            Here, of course, there was no opportunity to correct the irregularity.  Neither of the parties was aware of the inadvertent inclusion of material not admitted as evidence in the exhibit until the trial had ended and the jury had been discharged. 

[13]            It may be that the irregularity and any resulting prejudice could have been corrected easily if it had been noticed before the jury’s deliberations had come to an end.  Perhaps the jury could have been instructed not to have regard to the footage. 

[14]            It is not known what the jury viewed.  What is certain is that the jury was provided with material relevant to the case that was not evidence and was not led in court.  This raises concerns about trial fairness and potential prejudice to the plaintiff.  An important factual issue in the trial was the extent and severity of the plaintiff’s injuries.  Thus, the video surveillance footage is highly relevant and potentially prejudicial.

[15]            Notwithstanding the general principles of respect for jury secrecy, there is jurisdiction to make some inquiries of a jury: see R. v. Pan, 2001 SCC 42, [2001], 2 S.C.R. 344.  However, I am not persuaded that asking the foreperson to appear in court and to advise the court whether the jury viewed the DVD is appropriate.  Many weeks have passed since the trial.  Recall of a juror for these purposes is impractical and of questionable reliability.

[16]            It is clear that a trial judge has the power to order a mistrial if the judge concludes there is no other option to remedy an irregularity.  After the jury has been discharged, I am satisfied there is nothing further that can be done by the court.

[17]            Both parties are entitled to have the jury decide the case solely on the evidence properly admitted during the trial.  That is fundamental to a fair trial.  It is my duty as a trial judge to ensure that this is safeguarded.  Here, it is accepted by both parties that there was extraneous material made available to the jury that was not evidence admitted during the trial.  This material is relevant to the issues in the trial and is potentially prejudicial.  Since this irregularity cannot be corrected I conclude it would be unjust and unfair to let the verdict stand. 

[18]            A mistrial is appropriate where necessary to ensure that justice is done between the parties: see de Araujo v. Read.  The plaintiff’s application for a mistrial is allowed.

More on Rule 37B and ICBC Injury Claims

Written by admin on . Posted in Civil Procedure, Uncategorized. 112 Comments on More on Rule 37B and ICBC Injury Claims

Reasons for judgement were released today by the BC Supreme Court providing more interpretation to Rule 37B in the context of ICBC Claims.  (for background on Rule 37B and ICBC Claims see my former blog posts).
In today’s case (Jacobs v. McLaughlin) the Plaintiff sued 3 separate Defendants as a result of 3 separate accidents.  All 3 Defendants made formal settlement offers before trial.   2 of the Defendants bested their formal settlement offers at trial.  At issue was what costs consequences should follow as a result of this.
The court summarized the case law to date interpreting Rule 37B with the following analysis:

[20]            The new rule broadens the discretion of the court, permitting it “to take offers to settle under the rule into account based on the factors set out later in the rule”:  Cowichan Bay Contractors Ltd. v. Insurance Corporation of British Columbia (29 July 2008) Victoria 05/1639, at para. 5 [Cowichan Bay]. 

[21]            Unlike its predecessor, Rule 37B does not mandate outcomes; if the plaintiff fails to beat an offer to settle, it does not mean that the plaintiff will automatically be deprived of costs, as this “interpretation would fetter what is clearly intended to be an unfettered discretion”:  Bailey v. Jang, 2008 BCSC 1372, [2008] B.C.J. No. 1952, at para. 19 [Bailey].

[22]            In addition to providing for the court’s discretion to consider offers to settle, the new rule is permissive in its effect:  British Columbia Society for the Prevention of Cruelty to Animals v. Baker, 2008 BCSC 947, [2008] B.C.J. No. 1635 [B.C.S.P.C.A.].  Subrule (5) empowers the court to deprive a party, in whole or in part, of costs to which it would otherwise be entitled, or award double costs of all or some steps taken in the proceedings.

[23]            The policy underlying the new Rule 37B remains the same as under the former Rule 37:  to encourage reasonable early settlement of disputes “by providing that there will be consequences in the amount of costs payable when a party fails to accept an offer that ought reasonably to have been accepted”:  Arnold v. Cartwright Estate, 2008 BCSC 1575, 86 B.C.L.R. (4th) 99, at para 16; Abma v. Paul, 2009 BCSC 60, [2009] B.C.J. No. 87, at para. 23.  The rule also exists to “deter certain kinds of conduct”:  Bailey, at para. 18. 

Rule 37B(6)(a):  Reasonableness of the Offers to Settle

[24]            The onus is on the defendants to establish that the offer was one that the plaintiff ought reasonably to have accepted:  B.C.S.P.C.A., at para. 36.

[25]            The plaintiff submits that this Court should not give any weight to the defendants’ offers to settle not solely because they were unreasonable, but because she was incapable of accepting any of the offers in isolation of the others.  The plaintiff relies on Carvalho v. Agnotti, 2008 BCSC 386, [2008] B.C.J. No. 559 [Carvalho], to support her argument.

[26]            In Carvalho, the defendants made separate offers related to two separate car accidents involving the plaintiff.  Mr. Justice N.H. Smith held that the substantial overlap in damage claims precluded acceptance of only one of the offers; instead, the plaintiff had to consider the two offers together.  In this case, each of the three accidents caused separate and discrete injuries to Ms. Jacobs.  Plaintiff’s counsel had overwhelming evidence prior to the onset of Ms. Jacobs’ MS that there were no “overlapping” injuries.  Carvalho is distinguishable on this basis. 

[27]            I am satisfied that the factual evidence before the plaintiff should have led her to conclude that the offers could have been accepted in isolation of each other.  This is not the imposition of hindsight reasoning, as argued by the plaintiff.  Rather, it is the fair assessment of the factual evidence before the plaintiff as it related to her claim. 

[28]            Ms. Jacobs submits that at the date of delivery, following so soon after the third motor vehicle accident and the definitive diagnosis of her MS, she did not have an opportunity to obtain medical and legal opinions respecting the role of the trauma in the exacerbation of her MS.

[29]            Under Rule 37B, a party must be afforded a reasonable period of time to “consider an offer and decide in the circumstances existing at the time of the offer whether it should be accepted or rejected”:  Coquitlam (City) v. Crawford, 2008 BCSC 1507, [2008] B.C.J. No. 2095, at para. 17 [Coquitlam].

[30]            All parties agree that the plaintiff required a reasonable opportunity to investigate this allegation before deciding to reject the offers to settle. 

[31]            The defendants state that there should have been a reasonable time period in which to investigate the MS causation issue after July 17, 2006, when the issue became “alive”.  The defendants submit that by December 31, 2006 the plaintiff should have been able to fully assess the legal principles and scientific research on the MS causation analysis as it related to her claim.  Thus, they submit, it would have been reasonable for Ms. Jacobs to accept their offers to settle by that time.

[32]            I note that the plaintiff amended her statement of claim to include the MS causation issue in October 2006.

[33]            The plaintiff submits that it was reasonable for her to advance the MS causation issue up until a few weeks before trial, as her particular claim was supported by medical science, her physicians, and the law in British Columbia. 

[34]            At a pre-trial settlement conference on September 27, 2007, Mr. Justice Halfyard commented that the defendants’ defenses on the MS causation issue were strong and it would be difficult for the plaintiff to prove this allegation on a balance of probabilities. 

[35]            The plaintiff argues that it was unreasonable to accept the offers to settle after the settlement conference because it would have had serious cost implications for the plaintiff, ultimately leaving her with no compensation and in a deficit position, notwithstanding the admitted negligence of the defendants.  Thus, the plaintiff submits, at no time was it reasonable for her to accept the offers to settle.

[36]            The trial commenced on October 14, 2007. 

[37]            The plaintiff appears to have initiated the investigation into her injuries and their relationship to her MS around November 16, 2006, which is the date of Ms. Jacobs’ first appointment with Dr. Devonshire.  However, any serious evaluation into this claim occurred much later; all reports relating to the plaintiff’s MS were dated July 2007 (Devonshire report) and August 2007 (Rathbone, Freeman, and Bateman reports), with the requests for these reports dated between two and four months prior to their receipt.  The majority of Ms. Jacobs’ appointments related to these reports took place in the late spring and early summer of 2007. 

[38]            I find it difficult to accept Ms. Jacobs’ argument that it was unreasonable at essentially all times to accept the offers because she expected to succeed on the MS causation issue, given that she ultimately abandoned the argument.  At some point, the medical and legal research done by counsel should have suggested that the factual and scientific evidence linking Ms. Jacobs’ injuries and her MS were not sufficient to bring to trial.  As Mr. Justice Hall noted at para. 16 of Catalyst Paper Corporation v. Companhia de Navegação Norsul, 2009 BCCA 16, [2009] B.C.J. No. 52:

[16]      It seems to me that the trend of recent authorities is to the effect that the costs rules should be utilized to have a winnowing function in the litigation process.  The costs rules require litigants to make careful assessments of the strength or lack thereof of their cases at commencement and throughout the course of litigation.  The rules should discourage the continuance of doubtful cases or defences.  This of course imposes burdens on counsel to carefully consider the strengths and weaknesses of particular fact situations.  Such considerations should, among other things, encourage reasonable settlements.

[39]            I accept the defendants’ submission that at some point before the settlement conference, neither the factual nor the scientific evidence supported the MS causation issue allegation.  Knowing this, plaintiff’s counsel took the gamble anyway.

[40]            Taking into consideration when the statement of claim was amended to include the MS causation issue, and the plaintiff’s receipt of her experts reports, I am satisfied that the plaintiff should have been able to evaluate her claim by August 15, 2007.  At this point, the MS causation issue should have been abandoned, and the McLaughlin and Meehan offers ought reasonably to have been accepted.

[41]            The plaintiff further submits that accepting the two offers which exceeded the judgment in this case would have saved neither time nor money, as the case against Ms. Moyer would have commenced in any event, and this court would have been required to hear all the evidence related to the three accidents. 

[42]            There are two difficulties with this submission.  First, the injuries sustained in the accidents were discrete, thus, a claim against Ms. Moyer would not have required any evidence pertaining to the accidents involving Ms. McLaughlin and Ms. Meehan.  Second, there are multiple purposes for assessing offers to settle in the award or deprivation of costs under Rule 37B, only one of which is indemnification.

Rule 37B(6)(b):  Relationship Between the Terms of 
Settlement Offered and the Final Judgment of the Court

[43]            Subrule 37B(6)(b) could be used to assess, among other things, whether an offer is strategic (MacKinlay v. MacKinlay Estate, 2008 BCSC 1570, 44 E.T.R. (3d) 48) or confers a significant benefit aside from costs:  B.C.S.P.C.A., at para. 34. 

[44]            The plaintiff submits that this Court should look at the difference between the global amount offered by the defendants and the global damages awarded by this Court and hold that the amount is insignificant.  However, the offers were not made globally. 

[45]            I find that the differences between the offers to settle and the awards of both defendants are significant.  The plaintiff recovered approximately 60% of the amount on offer by the defendant McLaughlin and precisely 60% of the amount on offer by the defendant Meehan. 

Rule 37B(6)(d):  Any Other Factor the Court Considers Appropriate

[46]            The defendants argue that the old Rule 37(24) and the plaintiff’s unreasonableness should be considered.

[47]            First, the defendants point out that they had no ability to structure offers with regard to the current rule, as they were made two years before it came into effect.  The issue of the application of Rule 37B in the context of settlement offers made prior to its enactment was considered by Mr. Justice Macaulay in Cowichan Bay, who stated the following at para. 12 of his oral judgment:

[12]      Finally, I take into account that at the time the offer was made in this case, the parties then reasonably expected that the rule in its then form would govern the consequences of the offer.  Accordingly, there is no question that the plaintiffs have had notice of the potential consequences throughout the proceedings.

[48]            I agree with the defendants that there was an expectation at the time the offers were made that success on the part of the defendants would inevitably give rise to an award of costs.  This factor will diminish in significance over time, but so long as there is litigation involving offers to settle under the former rule, the consequences under that regime are factors to consider.

[49]            The defendants also argue that the court should impose a penalty on Ms. Jacobs.  The plaintiff caused a great deal of unnecessary costs and resources, which were expended by both sides in this litigation.  In particular, the defendants prepared for a 30-day trial, and then had to modify this preparation after the plaintiff abandoned the MS causation issue on the first day of trial.  This, alone, added significant costs to the defendants. 

[50]            The purposes of Rule 37B, to promote settlement, prevent unnecessary claims, and deter poor conduct, will lose its efficacy if a reasonable party is denied relief after attempting to resolve the case by settlement.

 

ICBC Injury Claims, Lawyers and Settlement

Written by admin on . Posted in Civil Procedure, Uncategorized. 56 Comments on ICBC Injury Claims, Lawyers and Settlement

(Please Note:  The Case discussed in this article was overturned by the BC Court of Appeal on May 7, 2010.  You can click here to read the BCCA’s reasons for judgement)
As an ICBC Injury Claims Lawyer I have developed a particular habit when it comes to settlement of my clients claims.  I typically never bind my clients to a settlement until they sign a full and final release (the settlement contract ICBC uses in concluding injury claims).  This is my usual practice even if I receive firm instructions to settle an ICBC Injury Claim for a certain amount and I get a better settlement offer on the table.
Lawyers act as agents for their clients.  Lawyers can, therefore, bind their clients to a settlement.   Typically a client will give a lawyer authority to settle their claim for X dollars and the lawyer will attempt to get that amount or more.  If a lawyer accepts an ICBC settlement offer on behalf of their client the client is typically bound to the settlement, even if the client later wishes to get out of the settlement by not signing ICBC’s full and final release.
When deciding whether or not to accept an ICBC settlement offer, like many important decisions in life, people sometimes second guess themselves and change their mind.  For this very reason I typically negotiate on a non-binding basis making it clear to ICBC or ICBC’s lawyers that if a settlement is agreed to in principle it is never binding on my client unless and until they sign the full and final release.  This gives clients one last chance to change their mind which is never a bad option to have.
If such a term is not part of the settlement negotiations then a client may be bound even if they get cold feet and decide not to sign ICBC’s settlement contract.  Reasons for judgement were relased today (Lacroix v. Loewen) discussing exactly such a scenario.   In Lacroix the Plaintiff gave her lawyer instructions to accept a settlement offer.  The lawyer then did accept ICBC’s settlement offer.  The client, after speaking with some friends, decided not to proceed with the settlement and did not sign ICBC’s settlement contract.  The client proceeded with her Injury Claim and ICBC brought an application to dismiss the lawsuit on the basis that it was already settled.
In the end Mr. Justice Williamson permitted the claim to continue finding that after the accepted offer ICBC insisted upon a new term which was not part of the agreed settlement thus undoing the agreement to settle. But for this fact, it appears, the Plaintiff would have been bound to the settlement.  Mr. Justice Williamson summarized the law relating to offer and acceptance of ICBC Injury Claims and the required paperwork that flows from such a contract as follows:

[14] In Fieguth v. Acklands Ltd. (1989), 37 B.C.L.R. (2d) 62, 59 D.L.R. (4th) 114 (C.A.), McEachern C.J.B.C., speaking for the court, said at 70:

In these matters it is necessary to separate the question of formation of contract from its completion. The first question is whether the parties have reached an agreement on all essential terms. There is not usually any difficulty in connection with the settlement of a claim or action for cash. That is what happened here and as a settlement implies a promise to furnish a release and, if there is an action, a consent dismissal unless there is a contractual agreement to the contrary, there was agreement on all essential terms.

The next stage is the completion of the agreement. If there are no specific terms in this connection either party is entitled to submit whatever releases or other documentation he thinks appropriate. Ordinary business and professional practice cannot be equated to a game of checkers where a player is conclusively presumed to have made his move the moment he removes his hand from the piece. One can tender whatever documents he thinks appropriate without rescinding the settlement agreement. If such documents are accepted and executed and returned then the contract, which has been executory, becomes executed. If the documents are not accepted then there must be further discussion but neither party is released or discharged unless the other party has demonstrated an unwillingness to be bound by the agreement by insisting upon terms or conditions which have not been agreed upon or are not reasonably implied in these circumstances.

[15] In the case at bar, the question becomes whether the defendants, in sending over the cheque for the settlement sum along with the release documents, insisted upon terms or conditions which had not been agreed upon or were not reasonably implied in these circumstances.

[16] There is no doubt upon the affidavit material filed by the plaintiff that when ICBC offered the plaintiff $7,000 via her counsel Mr. Mickelson, she told Mr. Mickelson to accept that offer.  He did.

[17] It was after a conversation with friends that the plaintiff telephoned Mr. Mickelson again and told him that she would not accept the offer.

[18] The plaintiff says that the documents, which she saw only after purporting to withdraw her acceptance, show that Mr. Mickelson did not follow her instructions.  She had instructed him to make an offer at $6,500, plus user fees, plus all of her expenses, an offer that would have amounted to $7,692.  However, she points out that according to the ICBC adjuster’s notes, Mr. Mickelson did not make an offer of $7,692.  Instead, he countered ICBC’s offer of $5,500 with an offer of $7,000.  Thus, the offer that he made was $692 less than the one authorized by the plaintiff.

[19] Nevertheless, when Mr. Mickelson told the plaintiff that ICBC had made an offer of $7,000, it is undisputed that she said she would accept ICBC’s offer.

[20] In these circumstances, I cannot see how the fact that the offer was $692 less than what was originally authorized matters.  The fact is that there was $7,000 on the table.  Her solicitor advised her to take this offer and she did.

The lesson in this case is to make sure that when you give your lawyer settlement instructions understand that he/she can make a binding commitment on your behalf based on these instructions.  Better yet,if you don’t know your lawyers negotiation tactics consider asking him or her to negotiate on a non-binding basis giving you, the client, the final say when the claim settlement paperwork is presented to you.

ICBC Injury Claims and Hit and Run Accidents

Written by admin on . Posted in Civil Procedure, Uncategorized. 110 Comments on ICBC Injury Claims and Hit and Run Accidents

Imagine being the victim of a hit and run accident in British Columbia and sustaining serious injuries.  You try your best to figure out the identity of the offending motorist but you get nowhere.  Your injuries significantly impact your day to day life and your medical expenses and wage loss are sky-rocketing.  Without knowing the identity of the other driver you have no one to sue for damages, so are you out of luck?  Not always.
In certain circumstances ICBC can be sued directly in the place of an unidentified driver.   Section 24 of the Insurance (Vehicle) Act permits ICBC to be named as a nominal defendant in certain hit and run accidents.  
Section 24 also has certain restrictions built in limiting the circumstances when ICBC can be sued as a nominal defendant.  One of these restrictions requires an injured Plaintiff to take reasonable efforts to identify the driver/owner of the offending vehicle.
Reasons for judgement were released today by the BC Supreme Court (Filsinger v. ICBC) where a Plaintiff who was the victim of a hit and run was awarded over $150,000 in damages as a result of serious injuries.  In doing so the court considered the duty to make ‘reasonable efforts’ to identify the offending motorist and summarized the law and the facts of the case as follows:

[17]            The defendant challenges whether the plaintiff took reasonable steps pursuant to s. 24(5) of the Insurance (Vehicle) Act to identify the owner and operator of the hit-and–run vehicle.

[18]            The defendant submits that the plaintiff decided not to co-operate and did not take the opportunity to investigate and identify the driver.  The defendant refers to Tessier v. Vancouver(City) (2002), 48 C.C.L.I. (3d) 273 (B.C.S.C.).

[19]            The leading case in the area is Leggett v. ICBC (1992), 96 D.L.R. (4th) 123, 72 B.C.L.R. (2d) 201 (C.A.), leave to appeal to S.C.C. ref’d (1993), 14 C.C.L.I. (2d) 100, where the British Columbia Court of Appeal made it clear that ICBC’s exposure to liability is limited to claims brought by those who could not ascertain the identify of the parties responsible, and not to parties who had the opportunity to identify the offending vehicle but chose not to do so.  In Leggett, unlike the case at bar, the plaintiff had spoken to the unidentified driver who had stopped at the scene of the accident.  However, the plaintiff in Leggett chose not to obtain particulars of the unidentified party, believing at the time that he had not suffered any injury.  The court found that because the plaintiff failed to make all reasonable efforts to determine the identity of the persons responsible, he could have no claim against the insurer.  

[20]            In Daniels v. Insurance Corporation of British Columbia (1985), 14 C.C.L.I. 172 (B.C.S.C.), the plaintiff was injured while riding his bicycle.  He testified that he had been riding at night with red reflective devices, and that he recalled hearing an automobile approach, but had no further memory until he awoke in hospital.  The defendant submitted in that case that the plaintiff had failed to establish that an unidentified motorist had been negligent in the collision.  The court held, at 175:

I find that a citizen having been involved in an accident, a citizen not trained in investigative procedures (if he reports the accident), he can properly expect the police authorities to carry out the necessary, reasonable investigation contemplated by Section 23 of the Insurance Act.  Therefore, I find that the Act has been complied with by this particular plaintiff and the action is properly brought.

[21]            Other cases of interest cited to me were Hocaluk v. Insurance Corporation of British Columbia, 2007 BCSC 170, 69 B.C.L.R. (4th) 360, Ball v. Insurance Corporation of British Columbia (1996), 37 C.C.L.I. (2d) 246 (B.C.S.C.), and Slezak v. Insurance Corporation of British Columbia, 2003 BCSC 1679, 5 C.C.L.I. (4th) 230.

[22]            While I would not describe the plaintiff’s efforts to locate the other driver as exceptional, on a balance of probabilities I find that he met the legal onus upon him to make a reasonable effort to find the driver.  He contacted his friend in the RCMP immediately, he met with the police the same evening and gave a statement and handed over a piece of evidence.  He published two newspaper advertisements many months after the fact, probably on the advice of his lawyer.  I note, however, that in his interviews with ICBC after the accident, he was not told that he had to do anything to find the other driver. 

If you are the victim of a hit and run collision in British Columbia and sustain injuries you should be familiar with Section 24 of the Insurance Vehicle Act and the limitations on ICBC’s liability as set out in this legislation.

BC Personal Injury Claims and the Duty to Mitigate

Written by admin on . Posted in Civil Procedure, Uncategorized. 51 Comments on BC Personal Injury Claims and the Duty to Mitigate

If you are injured in BC through the fault of another and advance a tort claim you have a duty to mitigate your damages.  What this means is you have a duty to take reasonable steps to minimize your losses.  For example, if you are capable of getting back to work you ought to do so, or if your doctor prescribes a rehabilitation program you should take reasonable steps to follow this advice.
If you fail to mitigate your damages the value of your damages may be reduced accordingly.  In other words, if the Court finds that you unreasonably failed to follow a rehabilitation program and doing so would have improved your injuries by 50% the value of your Injury Claim could be reduced by 50%.
But what if you can’t afford to follow your doctors advice?  What if the medications prescribed are too expensive or if the physiotherapy costs are beyond your budget, surely this can’t amount to a failure to mitigate, can it?  Unfortunately it can if you have ICBC No Fault Benefits available to you and you fail to apply for and receive these.  Section 83(2) of the Insurance (Vehicle) Act reads as follows:
(2) A person who has a claim for damages and who receives or is entitled to receive benefits respecting the loss on which the claim is based, is deemed to have released the claim to the extent of the benefits.
What this means is that if you could recieve ICBC rehabilitation benefits and fail to apply for these the person that injured you can successfully argue that you failed to mitigate your damages.
Reasons for judgement were released today (Smith v. Tedford) highlighting this fact.  In this case Mr. Justice Grist made the following observations:

[3]                Once pled as an issue by the defendant, damages will be limited if the defendant can show the plaintiff failed to take steps a reasonable person would have taken to mitigate or lessen the loss. In the case of a personal injury trial, this would include recommended treatment or therapy if pursuing the treatment is a reasonable course in the circumstances and can be proven to likely have had efficacy.

[4]                In my view, the financial circumstance of the plaintiff falls into the overall consideration of reasonableness. If the plaintiff is of modest means, the expensive therapy may be a significant factor. The fact that such a plaintiff has been denied coverage for the therapy under the universal motor vehicle coverage provided under Part 7, is in my view, a factor for consideration when failure to mitigate of this sort is alleged. This coverage, as being ordinarily available to those injured in motor vehicle collisions, may well be assumed by a jury hearing such a case. Therefore, where there has been a request for coverage, the response becomes relevant.

[5]                This is not a case of putting ICBC on trial.  It is a matter of responding to a defence issue by reference to the plaintiff’s resources and whether it was reasonable to pursue the recommended treatment. Further, a full response to the issue is not necessarily made simply by the Plaintiff indicating a lack of resources in her evidence. As here, and as it happens in many cases, the plaintiff’s credibility is challenged and the ability to rely on confirmation is significant. Further, this is not a matter of determining Part 7 coverage. That is an issue for proceedings after a jury verdict and is quite independent, in my view, of this question.

In another ICBC Injury Claim released today (Job v. Blankers) Madam Justice Ker of the BC Supreme Court penalized a plaintiff for failing to mitigate her damages.  In this case the Plaintiff was found to have mild to moderate soft tissyue injuries and the non-pecuniary loss was valued at $25,000.  This award was then reduced by 10% for failure to mitigate.  In coming to this conclusing the Court made the following analysis:

[110]        In Antoniali v. Massey, 2008 BCSC 1085, Mr. Justice Preston addressed the issue of mitigation of damages at ¶29-50.  In that case, the defendants established that the plaintiff unreasonably failed to embark on an exercise program under the guidance of a personal trainer to rehabilitate herself and reduce or eliminate the continuing effect of her injuries.

[111]        The decision in Antoniali provides a helpful framework for assessing whether the defendant has established that the plaintiff has failed to mitigate her damages in this case.  In order then to conclude that Ms. Job’s damages should be reduced by the application of the principle that a plaintiff has a positive duty to mitigate her injuries, adapting that framework to the circumstances of the present case, I would have to find that the defendant has established:

1.      that a program of massage, physiotherapy and chiropractic intervention at a stage earlier than that undertaken by the plaintiff would have reduced or eliminated the effect of the injuries;

2.      that the reasonable plaintiff in Ms. Job’s circumstances would have followed such a program;

3.      that Ms. Job unreasonably failed to follow such a program and;

4.      the extent to which Ms. Job’s damages would have been reduced if she had followed such a treatment program.

[112]        Applying those factors to the circumstances of this case, I am satisfied the defence has established that Ms. Job failed to mitigate her injuries and symptoms.  Although Ms. Job may have had some financial reasons for failing to follow through on her doctor’s referrals, it appears from her evidence that her refusal to sign the appropriate documentation that ICBC sought contributed to her difficulties in that regard.

[113]        Dr. O’Neill’s evidence that the earlier treatment begins after an accident, the better the prognosis for the patient, and his observation that the plaintiff’s recovery may have been better had she attended earlier, satisfies me that had Ms. Job engaged in earlier treatment of her injuries as directed by her family physician in August and October 2007, she would have likely reduced the disability that she has experienced as result of the injuries.

[114]        I find that the plaintiff failed to take reasonable steps to mitigate the physical effects of the injuries sustained in the collision by failing to undertake the treatment regime recommended by her physician at the time the recommendation was made.  On the evidence of Dr. O’Neill, this was likely an impediment to achieving an earlier recovery.  Ms. Job had an obligation to assist in her recovery, even if it meant some initial financial hardship in terms of ability to pay for the treatments.  The burden of establishing a failure to mitigate is on the defendant.  I find that the defendant has met the onus in this case and has established that the plaintiff did not take all reasonable steps towards assisting in her recovery by failing to engage in treatment at the time her physician recommended she do so.

[115]        Accordingly, I reduce her award for non-pecuniary damages by 10% to reflect her failure to mitigate those damages in these circumstances.

[116]        In the end, there will be an award of $22,500 ($25,000 less 10% for failure to mitigate) in non-pecuniary damages.

A Little Bit on ICBC Injury Claims and the Jurisdiction of BC Courts

Written by admin on . Posted in Civil Procedure.

Does the BC Supreme Court have standing to preside over an Auto Injury Claim for Damages that occurred outside of British Columbia?  The answer, as in many areas of the law, is sometimes.
There is a long history in the common law setting out the circumstances when a BC Court has jurisdiction to preside over an Injury Claim that arises in a foreign jurisdiction.  More recently the Court Jurisdiction and Proceedings Transfer Act came into force codifying some of the common law principles governing circumstances in which BC Courts have jurisdiction to preside over a case.  This legislation is fairly new and has received little interpretation by the BC Courts.  
Today, Mr. Justice Brown of the BC Supreme Court released reasons for judgement (Scott v. Hale) interpreting this legislation and giving clarity to the circumstances when the BC Supreme Court can hear an accident claim that occurred out of Province.
In today’s case the Plaintiff was involved in 2 motor vehicle collisions, the first in Alberta and the second in British Columbia.  The Plaintiff applied to have both cases heard at the same time.  The Defendants in the BC Car Crash opposed the motion.  In opposing the motion the ICBC Defence Lawyer argued that the Court had no jurisdiction to preside over the Alberta accident therefore the claims should not be heard together.
Mr. Justice Brown rejected this argument and released what are probably the most comprehensive reasons to date interpreting the BC Court Jurisdiction and Proceedings Transfer Act.
The heart of the judgement focused on whether the BC Supreme Court has ‘subject matter competence’ to preside over an Alberta car crash case.  After finding that there were sufficient reasons for both the BC and Alberta auto accident claims to be heard at the same time Mr. Justice Brown concluded that the BC Court indeed is competent to preside over the Alberta car crash claim.  After a lengthyt analysis the Court came up with the following definition of “Subject Matter Competence”

[33]            To clarify: isolating for a moment the word ‘connections’, the only ‘connections’ relevant to territorial competence would be those between a province and the facts upon which a proceeding is based (and as discussed above, broadly and unfortunately referred to as ‘subject matter’ in Morguard).  For example: where did the accident take place?  Where was the contract made?  Where was the product sold?  Where was it manufactured?

[34]            But those questions stand well apart from other specific jurisdictional questions such as, How much money is being claimed?  Does the court in question have jurisdiction to hear torts, product liability or tax cases?  These are factors that relate to restrictions placed upon a courts’ jurisdiction by its own legislature.

[35]            I note that in the Draft all instances of “superior court” were intended to be substituted with the names of each provinces’ court of “unlimited trial jurisdiction”.  As such, the CJPTA, as adopted in British Columbia, refers to the Supreme Court.   The Supreme Court Act, R.S.B.C. 1996 c. 443 explains:

9(1)      The court continues to be a court of original jurisdiction and has jurisdiction in all cases, civil and criminal, arising in British Columbia.

[36]            If the Supreme Court has jurisdiction in all cases, what subject matter restrictions might there be?  Of course the apparently all encompassing jurisdiction of the Supreme Court has been limited in many instances in the grant of exclusive jurisdiction over certain subject matters to various boards and tribunals.  In my view, it is just such restrictions as these that are relevant factors when considering whether the court owns subject matter competence. 

Applying this definition to the case at bar Mr. Justice Brown summarized his reasons at paragraph 45 of the judgement as follows:
I find this case is a tort committed in Alberta, the Plaintiff claims compensation for non-pecuniary and pecuniary losses resulting from Defendant Hale’s alleged negligence; and there is no legislative or other restriction placed upon this Court that would in any way inhibit it from hearing such a claim, nor from granting such relief.  Therefore, the subject matter of this case is well within the subject matter competence of this Court
This case is perhaps the leading authority in BC dealing with a BC Court’s Subject Matter Competence.  Anyone interested in the current state of Canadian Conflicts Law and the topic of Canadian Superior Courts jurisdiciton should thorougly review this case.  

More on ICBC Injury Claims and Independent Medical Exams

Written by admin on . Posted in Civil Procedure, independent medical exams, Uncategorized.

Ok, second post of the day on this topic.
Typically ICBC (on behalf of their insured defendant) are able to send a Plaintiff to an Independent Medical Exam in the course of a BC Supreme Court lawsuit in order to level the playing field.  In certain cases they are entitled to more than one exam.
Reasons for judgement were released today (Norsworthy v. Greene) dismissing a defence applicaiton for a second examination in an ICBC Injury Claim.
In this case the Plaintiff obtained several medico-legal reports including the report of a physical medicine specialist and a Functional Capacity Evaluation.  ICBC had the Plaintiff examined by Dr. Schweigel.  Dr. Schweigel provided the opinion that the Plaintiff had soft tissue injuries and that she “could have been off work for roughly 3 months.  After that she should have been able to return to work in a graduated fashion.  Within five to six months, she should have been able to return to full time work.  This lady is not disabled now from all the activities she was doing prior to the two MVA’s“.
The Plaintiff’s experts disagreed and provided opinion that her injuries were more severe and disabling that opined by Dr. Schweigel.  ICBC applied for a second ‘independent’ exam on the basis that they should be entitled to reply to the Functional Capacity Evaluation opinion obtained by the Plaintiff.  In rejecting the applicaiton Master Caldwell of the BC Supreme Court gave the following summary of the law regarding requests for multiple Independent Medical Exams:

[22] It should be obvious to any reader of these two reports that each was prepared by two persons with two completely different disciplines and approaches; yet there was a noticeable crossover in some of the observations made by each of them.

[23] In Christopherson v. Krahn, 2002 BCSC 1356, Madam Justice Smith made the observations at para. 9 that the test of reasonable equality does not mean that for each specialist relied upon by the plaintiff, the defendant is entitled to an IME from a similar specialist.  Smith J. went on to deal with this proposition when she quoted from Henry v. Derbyshire, [1997] B.C.J. No. 1750, a decision of Master Nitikman where, at para. 13, the master stated:

A third applicable principle is that the party seeking the examination is not limited to one independent examination but

The court will not order a second examination merely to permit the defendant to get a second opinion on the same matter.  [She went on to say] A second examination may be appropriate where there is some question which could not have been dealt with on the first examination.  The applicant must show a reason why it is necessary for the second examination.

[24] I take the view that in the case at bar the defendants are seeking a second examination pursuant to Rule 30(2).

[25] The IME sought by Dr. Schweigel was conducted after the defendants had knowledge of the earlier functional capacity evaluation of the plaintiff by an occupational therapist retained by the plaintiff, yet the defendants chose to have an IME conducted by an orthopedic surgeon.  That opinion seems to be firm.  Now the defendants seek an opinion of an occupational therapist which may undermine the opinion of Dr. Schweigel, their own expert.

[26] Respectfully, in my view, although the defendants point to the different purposes of the reports, I do not believe that those differences alone provide a valid reason for a second report pursuant to Rule 30(2).

[27] Accordingly, I dismiss the defendants’ application and award the plaintiff her costs for preparation for and attendance at the hearing of this matter.