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: