Exploring Pre-Existing Injury on Discovery – Forever Not Always OK

There is no shortage of caselaw addressing the obligations to produce historic clinical records when a plaintiff’s pre-existing health is at issue.  When it comes to the scope of fair questions at discovery the case law is far more sparse.  To this end helpful reasons for judgment were recently published by the BC Supreme Court discussing this issue.

In the recent case (Andrist v. Bryant) the Plaintiff was involved in a vehicle collision and sued for damages.  The Defendant plead that the plaintiff had pre-existing injuries and there was some further evidence this was the case.  Plaintiff’s counsel was ok with questions about the plaintiff’s health in the two years preceding the crash.  The defendant wished to explore the issue without this limit and the disagreement eventually spilled over to a chambers application.

In addressing the fact that limits can be placed on questioning pre-existing health Mr. Justice Tindale noted that the correct balance in this case likely lies somewhere between the Plaintiff’s position of only 2 years and the Defendants position of a lifetime.  The court provided the following reasons:

[33]         The defendants have presented medical records which establish that the plaintiff had some back and neck issues prior to the MVA. Also there is a neurological assessment of the plaintiff dated October 5, 2020 which suggests that the plaintiff had a traumatic brain injury in 2001 and 2018.

[34]         I accept that the plaintiff’s pre-MVA medical history is likely relevant to an assessment of her general damages relating to her alleged injuries as well as an assessment of her wage loss claims.

[35]         Given the plaintiff’s medical history as established in the medical documents produced on this application by the defendants I do not agree with the plaintiff that a blanket objection that the defendant cannot ask questions about the plaintiff’s medical history beyond two years before the MVA is reasonable.

[36]         The difficulty I am having with the defendant’s application however, is the broad nature of the requested order that would compel the plaintiff to answer all questions regarding her medical history “without any restriction to a two-year period prior to the motor vehicle accident in question”.

[37]         First of all it is not apparent from the materials on this application that any question regarding the plaintiff’s prior medical history would be relevant and without the question being asked it is impossible for this court to determine the question’s relevancy and the validity of the objection.

[38]         Further Rule 7-2 (25) allows for the court to order the plaintiff to submit to further examination however that is after a determination of whether or not “the question and objection” which has been taken down by the official reporter have been put before the court and the validity of the objection has been decided.

[39]         In this application the defendant has not asked the court to determine whether or not they should be allowed to ask the questions which were objected to at the examination for discovery on February 16 2023 but rather the defendant is asking this court to pre-empt the plaintiff from objecting to any question relating to her medical history even if that question relates to the plaintiff’s medical history from 40 years ago.

[40]         In my view the defendant’s application is overly broad and premature. The defendant has to either ask the court to determine the validity of the objections already made or continue with the examination for discovery and then if their questions are objected to ask the court to determine the validity of these objections.

[41]         For all the above noted reasons I am dismissing the relief sought by the defendant in Part 1 para. 2 of the Notice of Application.