Rule 68, ICBC Injury Claims and Proportionality

As readers of this blog know Rule 68 is a relatively new BC Supreme Court Rule designed to bring faster and more cost efficient access to court for claims valued under $100,000.  This rule applies tomany types of personal injury cases including ICBC Injury Claims brought in the BC Supreme Court valued under $100,000.
To save time and expense the rule has brought in certain restrictions with how cases are handled under the principle of ‘proprtionality’.  In other words, the cost and time involved in bringing a lawsuit should be proportionate to the amount at issue.
In achieving the end of ‘proportional’ justice Rule 68 brought in certain restrictions including limits on the number of expert witnesses each side can use and restricting the ability of the parties to have pre-trial examinations for discovery.
Today reasons for judgement were released by the BC Supreme Court (Geisbrecht v. Shepherd) dismissing a defence application seeking a second independent medical exam and an examination for discovery.  In dismissing the application the court discussed the principle of proportionality.  The judgement was short and succinct and I reproduce it in its entirety below:

[1]                THE COURT:  The provisions of Rule 68, of course, are relatively new.  While the principle of proportionality is not of itself new, it is a recent addition to the Rules as a specific factor to be considered.  Rule 68 derives from the concern of the profession and of the court that the high cost of litigation of relatively modest claims is something to be addressed and if possible corrected.

[2]                The circumstances here seem to me to be classic.  The plaintiff’s claim is for damages arising out of a soft tissue injury that she sustained in November of 2006.  The defendant admits liability.  Rule 68 effectively limits the pre-trial process available in order to move the matter forward on the merits in a balanced and fair way as between the parties.

[3]                Here there have been both a medical examination by a physiatrist engaged by the plaintiff as well as an independent medical examination by a physiatrist engaged by the defendant.  As I understand it, the defendant’s physiatrist found that the plaintiff sustained a soft tissue injury that should resolve, as most of them do, within 6 to 12 months, that 20 percent of those who sustain soft tissue injuries have symptoms that continue beyond that time.

[4]                The plaintiff says that she is within that 20 percent and that there is nothing new that was not available to be seen on the first medical examination that is believed or suspected to have come into existence since then.

[5]                Having said that, were it not for the underlying purpose of Rule 68 I would still be uncertain as to whether a second independent medical examination should be allowed.  However, taking into account the purpose of Rule 68, the principle of proportionality and the mischief of long and extensive small trials which is to be addressed, I decline to order a second independent medical examination of the plaintiff.

[6]                I point out that the trial of the matter is set for March of this year and disclosure has been made of the plaintiff’s witnesses, including a will-say statement concerning what those witnesses may be expected to say.

[7]                With regard to the defendant’s application for an examination for discovery of the plaintiff, I am once again not without some doubt, but it seems to me that to give effect to the defendant’s application in the circumstances which exist here would be to re-introduce into the practice under Rule 68 the old practice which it seems to me Rule 68 both endeavours to discourage and also provide an alternative to.

[8]                In the result, the defendant’s applications are dismissed.  Costs will be in the cause.

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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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