Sensible Compromise Suggested in Face of Late Medical Developments

When medical developments unfold deep in the litigation process it is not uncommon for adjournment applications to be granted.  Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, addressing such a situation urging parties to make reasonable compromises to accommodate these developments.
In the recent case (Dhillon v. Bowering) the Plaintiff was injured in two collisions that the Defendants admitted fault for.  In the course of the lawsuit the Plaintiff was assessed by an orthopaedic surgeon who felt some of the Plaintiff’s symptoms may be due to a possible labral tear.  An MRI was suggested.  The Plaintiff obtained an MRI which did indeed show bilateral labral tears.   The Plaintiff served an updated medical report addressing this.  This report, however, was authored and served outside the timelines required by the Rules of Court due to the timing of the MRI.
The Defendants requested a defence medical exam to address this issue.  The Plaintiff consented to this late examination provided the Defendants did not object to the late report the Plaintiff served.  The Defendant did not agree to these terms and instead brought an adjournment application.  Master Taylor refused to adjourn the trial noting the Plaintiff bore some risk in proceeding as the Plaintiff’s late report may not be admitted.  In suggesting compromise in such cases Master Taylor provided the following reasons:
[12]         So on one hand we do not have Dr. Shuckett’s report in evidence, and now we have defendants asking for an adjournment so that they can do what they need to do to buttress their case because of the report of Dr. Shuckett, which is not in evidence.
[13]         In my view, this problem could have been easily resolved by both parties agreeing to the late service of Dr. Shuckett’s report as well as the DME report from Dr. O’Brien and the matter would have proceeded.  Now we are faced with an adjournment application of a trial that is 11 days away, the first accident which occurred more than five years ago…
[18]         Well, with the greatest of respect to counsel, I do not know if prejudice would be an operating theme here in this application.  I think what is more to the point, and I pointed that out to counsel at the early stage of this application, is that, first of all, there is a hurdle that plaintiffs have to get over before a defendant should be even concerned about this fact.  The fact that they have not had a DME with respect to a labral tear in the left hip is not so much their concern but rather the causal connection.  I have not seen anything in any of the reports that would be suggestive in any way whatsoever that there is anything but the accident as a causal connection.  Now, if that is the only reason, ultimately, that the defendants are relying upon for an application for adjournment in this matter, then I think the defendants do not succeed in their application.
[19]         Accordingly, I dismiss the application for adjournment, and I will award costs to the plaintiff in any event of the cause, not payable forthwith. 
 

Adjournment Applications, bc injury law, Dhillon v. Bowering, master taylor, Rule 12, Rule 12-1, Rule 12-1(9)

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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