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Multiple Medical Exams When Initial Experts Come up Short

Written by admin on . Posted in Uncategorized.

There is wide discretion for the BC Supreme Court to order a plaintiff to be examined by multiple defence expert witnesses where the alleged injuries call for it.  While the law does not allow multiple exams to be conducted simply to get “the best expert” on each area in dispute, where initial experts come up short due to limitations in their area of expertise further examinations may be allowed.  This was demonstrated in reasons released today.
In today’s case (Garford v. Findlow) the Plaintiff was injured in two collisions.  In the course of her lawsuit she agreed to be examined by three defence physicians, namely an orthopedic surgeon, a dentist and a neurologist.  When the Defence asked for a further exam with a psychiatrist the Plaintiff drew the line.  The Court found, however, despite the multiple exams a further expert was warranted as the existing experts pointed to psychiatric issues playing a role in the Plaintiff’s condition and conceded this was an area out of their expertise.  In allowing the exam Master Bouck provided the following reasons:

[37]         In this case, I find that Dr. Miller’s examination is not an attempt to bolster an earlier opinion of another expert. Neither Drs. Piper, Gershman nor Dost provide a medical opinion on the plaintiff’s mental health, nor do any of them address the cause of the mental health complaints. These physicians comment on Ms. Garford’s mental health condition but no diagnosis is made with deference given to a psychiatrist to make such findings. It is pure speculation that Dr. Stewart-Patterson will provide a diagnostic opinion. Regardless, Dr. Stewart-Patterson’s credentials do not closely resemble those of a psychiatrist.

[38]         Given these findings, I am not at all certain that the defendants are required to meet the higher standard stipulated in Hamilton v. Pavlova. None of the authorities suggest that there is an absolute limit on the number of independent medical examinations that may be ordered under Rule 7-6(2). More to the point, all other assessments or examinations have been directed towards the plaintiff’s physical rather than mental condition.

[39]         On the question of timeliness, the defendants say that they will be in a position to serve any expert opinion by February 2, 2015. Whether the plaintiff will be able to assess and respond to any report remains to be seen. Obviously, the court was persuaded in De Corde that the timeliness factor weighed against granting the IME order. However, as the court determined in Critchley v. McDiarmid, 2009 BCSC 28, the order requiring a plaintiff attend an IME relatively close to trial does not necessarily mean that the trial will be adjourned or the plaintiff prejudiced: paras. 11?14.

[40]         In my view, the defendants are not required to show any exceptional circumstances as this is not an application for a subsequent examination by an expert in the same field or a multidisciplinary assessment as was the case in Wildemann v. Webster.

[41]         In terms of proportionality, the plaintiff has been out of the workforce for four years and is not expected to return to her pre-accident employment as a dental assistant. It is apparent that there will be a significant claim for both past and future income loss. The plaintiff’s claim for special damages is also indicative of the amount involved. I accept defence’s unchallenged submission that Ms. Garford will be seeking damages well in excess of $100,000 at trial. As with the court in Kim v. Lin, I find that the SCCR 1-3 factors in this case favour the order being made.

[42]         The plaintiff may not be pursuing a psychiatric opinion at this time, but she clearly blames the accidents for her mental health condition and necessity for psychological counselling. In my view, the task of identifying let alone proving other causes or sources for these mental health issues cannot be accomplished by simply cross-examining the plaintiff at trial.

[43]         In conclusion, I find that the plaintiff’s attendance at an IME with Dr. Miller will put the parties on an equal footing in terms of addressing diagnosis and causation of the plaintiff’s mental health condition. The examination may also address the interplay of the plaintiff’s mental and physical complaints.

Crashes and Winter Driving Conditions: Take Care to Be Accurate When Calling ICBC

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 48 Comments on Crashes and Winter Driving Conditions: Take Care to Be Accurate When Calling ICBC


With the first heavy snow of 2012 hitting the Lower Mainland and Greater Victoria comes the expected increase in motor vehicle collisions.  With this in mind I’m republishing a post I originally wrote in the early days of this blog reminding injured passengers of the consequences of minimizing details of wrongdoing when reporting a collision to ICBC:
Snow in BC has two reliable results 1. Car Accidents, 2. Phone calls to ICBC and lawyers about those car accidents. The second is particularly true in Victoria and Vancouver because of the local populations relative inexperience dealing with winter driving conditions.
In anticipation of the almost certain phone calls I will receive this week I write this post.
If you are the driver involved in a single vehicle accident in British Columbia, and you lost control due to the weather, all you can likely claim from ICBC are Part 7 Benefits. There is (except in some unusually peculiar situations such as an ICBC insured driver contributing to the road hazards) in all likelihood no claim from ICBC for pain and suffering and other losses in these circumstances.  Your right to claim pain and suffering and other “tort” damages only arises if someone else is at fault for your injuries. In single vehicle accidents drivers usually only have themselves or the weather to blame.
If someone else contributed to the accident (perhaps the road maintenance company for failing to act in a timely fashion or perhaps a mechanic for failing to bring your vehicle up to snuff last time you had it inspected) you will have to make a claim against them. Chances are they are not insured through ICBC for such claims and instead you will have to claim against their policy of private insurance.
Now, if you are a passenger in a single vehicle, weather related accident, and your driver did not operate the vehicle safely in all the circumstances (for example driving too fast for the known or anticipated poor road conditions) and this caused or contributed to the collision then you can bring a tort claim against them in addition to claiming your Part 7 Benefits.
If you are advancing a tort claim against a driver be weary of the defence of “inevitable accident”. ICBC defends claims. One of the best defences to a weather related accident is that it was “inevitable”. What this means is that the driver, operating safely, could not have avoided losing control of his vehicle. If this can be proven then the tort claim can be defeated.
People naturally don’t want to get those known to them in trouble and it is all too common for passengers reporting such a claim to ICBC to readily agree to how unexpected the accident was and how the driver was operating the vehicle very carefully. If this is true that’s fine. My words of caution are as follows: If the driver was not careful and you give ICBC the alternate impression with a view towards helping the driver out, your statement may severely damage your ability to bring a tort claim.
Tell the truth and know what’s at stake when doing so. If ICBC gets the false impression that an accident was inevitable you will have a much harder time advancing or settling your tort claim.
The bottom line is this: If an accident truly is inevitable and there is no tort claim so be it, but, don’t lead ICBC to this conclusion if it isn’t true. Doing so will harm your claim for lawful compensation.

Repost: Ice, Snow and Your ICBC Injury Claim

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 113 Comments on Repost: Ice, Snow and Your ICBC Injury Claim


The first snow of the year is falling and with it will come the usual increase in motor vehicle accidents.  With this in mind I’m republishing a post I originally wrote in the early days of this blog:
Snow in BC has two reliable results 1. Car Accidents, 2. Phone calls to ICBC and lawyers about those car accidents. The second is particularly true in Victoria and Vancouver because of the local populations relative inexperience dealing with winter driving conditions.
In anticipation of the almost certain phone calls I will receive this week I write this post.
If you are the driver involved in a single vehicle accident in British Columbia, and you lost control due to the weather, all you can likely claim from ICBC are Part 7 Benefits. There is (except in some unusually peculiar situations such as an ICBC insured driver contributing to the road hazards) in all likelihood no claim from ICBC for pain and suffering and other losses in these circumstances.  Your right to claim pain and suffering and other “tort” damages only arises if someone else is at fault for your injuries. In single vehicle accidents drivers usually only have themselves or the weather to blame.
If someone else contributed to the accident (perhaps the road maintenance company for failing to act in a timely fashion or perhaps a mechanic for failing to bring your vehicle up to snuff last time you had it inspected) you will have to make a claim against them. Chances are they are not insured through ICBC for such claims and instead you will have to claim against their policy of private insurance.
Now, if you are a passenger in a single vehicle, weather related accident, and your driver did not operate the vehicle safely in all the circumstances (for example driving too fast for the known or anticipated poor road conditions) and this caused or contributed to the collision then you can bring a tort claim against them in addition to claiming your Part 7 Benefits.
If you are advancing a tort claim against a driver be weary of the defence of “inevitable accident”. ICBC defends claims. One of the best defences to a weather related accident is that it was “inevitable”. What this means is that the driver, operating safely, could not have avoided losing control of his vehicle. If this can be proven then the tort claim can be defeated.
People naturally don’t want to get those known to them in trouble and it is all too common for passengers reporting such a claim to ICBC to readily agree to how unexpected the accident was and how the driver was operating the vehicle very carefully. If this is true that’s fine. My words of caution are as follows: If the driver was not careful and you give ICBC the alternate impression with a view towards helping the driver out, your statement may severely damage your ability to bring a tort claim.
Tell the truth and know what’s at stake when doing so. If ICBC gets the false impression that an accident was inevitable you will have a much harder time advancing or settling your tort claim.
The bottom line is this: If an accident truly is inevitable and there is no tort claim so be it, but, don’t lead ICBC to this conclusion if it isn’t true. Doing so will harm your claim for lawful compensation.

New Rules of Court Get First Judicial Interpretation: The Transitional Rule

Written by admin on . Posted in BCSC Civil Rule 24, Civil Procedure, Uncategorized. 51 Comments on New Rules of Court Get First Judicial Interpretation: The Transitional Rule

I have volunteered to keep an eye on the New BC Supreme Court Rules and write about decisions interpreting and applying these.  Today the first judgement considering the New Rules has come to my attention.  Today’s case dealt with Rule 24, the transitional rule.
In today’s case (Easton v. Cooper) the Plaintiff was involved in 3 motor vehicle collisions.  The Plaintiff sued for damages for each crash.  The lawsuits were started under the old Rules of Court but were set to proceed to trial in November, 2010 (some 5 months after the New Rules came into force).  The lawsuits were all started under Rule 68 of the old rules which required parties to exchange summaries of the evidence they expect their witnesses to give at trial.  The Plaintiff did not produce statements in compliance with this requirement.
The Defendant brought a motion to force  the Plaintiff to provide this evidence.  The Plaintiff opposed arguing that she no longer needs to exchange these statements because the trial will proceed under the new rules.  Mr. Justice Voith sided with the Defendants and ordered that the Plaintiff provide summaries of evidence as required under the old rules.  In reaching this conclusion the Court had the first opportunity that I’m aware of to consider section 24 of the New Rules of Court (the section dealing with parties obligations in lawsuits started under the old rules but that are ongoing aftger the New Rules came into force).  Mr. Justice Voith provided the following interpretation of this section:

[4]             Rule 24-1(14) of the New Rules provides:

(14)      If a step in a proceeding is taken before July 1, 2010, the former Supreme Court Rules apply to any right or obligation arising out of or relating to that step if and to the extent that that right or obligation is to have effect before September 1, 2010.

[5]             The interpretation of Rule 24-1(14) turns on both the meaning of “step in a proceeding” as well as the time period that is book-ended by the two dates within the provision…

[13]         Based on the foregoing authorities, within the “Rules context”, a “step” means a formal step expressly permitted or required by the Rules.

[14]         Rule 24-1(14) specifically focuses on a narrow window of time. It addresses instances where a step undertaken prior to July 1, 2010 gives rise to an obligation that is required to be satisfied prior to September 1, 2010. By way of example, the “step” of delivering a demand for discovery of documents created a right on the part of the initiating party and a concomitant obligation on the part of the recipient of the demand to comply with the time frames and substantive requirements of the former Rules. So long as the time frame for that obligation ends before September 1, 2010 the response or action is governed under the former Rules.

[15]         In this case Rule 24-1(14) is not engaged.

[16]         Rule 68(31) of the former Rules provided:

Witnesses

(31)      Within 90 days after the close of pleadings or within 90 days after the action becomes an expedited action, whichever is later, each party to an expedited action must deliver to each other party

(a)        a list, in Form 141, of the witnesses that the party delivering the list proposes to call at the trial of the expedited action, which list must

(i)    include the party delivering the list, if that party intends to give evidence at trial, and

(ii)    exclude any expert witnesses referred to in subrule (33), and

(b)        for each of the witnesses included in the list, a written summary of the evidence that the party believes that witness will give at trial.

[17]         In each of the three actions commence by Ms. Easton, the 90 day period provided for by the former Rule 68(31), as well as the obligation or formal step created by that Rule, had expired well before July 1, 2010. The application of Rule 24-1(14) simply does not come into play. The fact that the ultimate trial of these various actions will post-date September 1, 2010, is of no moment and does not detract from the obligation to adhere to the formal requirements established by the earlier Rules…

[21] The plaintiff is directed to provide proper witness statements to counsel for the defendants within 21 days of the date that these Reasons for Judgment are issued.

In addition to the usual variety of topics I cover on this blog I will continue to post about the new Rules of Court.  If anyone is aware of any recent cases worth noting here please don’t hesitate to contact me.

You Can't Sue Twice; The Doctrine of Res Judicata

Written by admin on . Posted in Civil Procedure, Uncategorized. 57 Comments on You Can't Sue Twice; The Doctrine of Res Judicata


Res Judicata is a legal principle which prevents a claimant from having their legal issues decided twice.  Once you’ve had your day in Court on an issue you are stuck with the result (subject to an appeal).  You can’t sue again and have a second trial hoping for a different result.  Reasons for judgement were released today by the BC Court of Appeal discussing the scope of this principle.
In today’s case (Innes v. Bui) the parties were involved in a a two vehicle intersection collision in 2001.  They approached each other from opposite directions.  The Plaintiff (Innes) attempted to go through the intersection and the Defendant (Bui) commenced a left turn.  The vehicles then collided.
ICBC, as is often the case in British Columbia, was the insurer for both parties.  ICBC decided that the Ms. Bui was entirely at fault.  This raised her insurance premiums.  Ms. Bui sued ICBC in small claims court arguing that she was not at fault and should have her increased premiums returned.  Eventually Ms. Innes was substituted for ICBC.   Ms. Innes was defended by an ICBC appointed lawyer.  ICBC argued that Ms. Bui was at fault.
At trial the Judge found that both Ms. Innes and Ms. Bui were ‘honest people” and he could not choose between their testimony.  The Small Claims judge dismissed the lawsuit finding that “In essence, I cannot choose between them, and to use a probably inappropriate sports metaphor, tie goes to the defendant in a case like this.  In other words, because I cannot decide who it is that I believe, I  have to dismiss the claim, and that is what I am doing.”
At the same time Ms. Innes filed a separate lawsuit against Ms. Bui in the BC Supreme Court alleging that Ms. Bui was at fault.  The Plaintiff was asking for compensation for her personal injury claims.  ICBC appointed a lawyer to Defend Ms. Bui and in this lawsuit argued that Ms. Innes was at fault.     ICBC brought a motion asking the lawsuit to be dismissed based on the principle of “res judicata“.  They argued that since the Small Claims judge already heard the issue of fault and called it a ‘tie‘ Ms. Innes’ case needs to be dismissed in the same way that Ms. Bui’s case was.
A chambers’ judge agreed and dismissed the lawsuit.  The Plaintiff appealed.  The BC High Court overturned the dismissal and found that the Chamber’s judge misapplied the law of ‘res judicata’.  The BC Court of Appeal provided the following useful analysis setting out the limits of the res judicata principle:

19]         There are two forms of the doctrine of res judicata: cause of action estoppel and issue estoppel.  Both operate where the court has adjudicated a cause of action between two or more parties and one of them seeks to re-litigate on the same facts.  Where the cause of action is the same, cause of action estoppel operates to prevent re-litigation of any matter that was raised or should have been raised in the prior proceeding.  Where the cause of action in the two proceedings is different, issue estoppel operates to prevent re-litigation of any issue determined in the prior proceeding.

[20]         The pre-conditions to making out issue estoppel are stated in Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248 at 254:

Lord Guest in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), at p. 935, defined the requirements of issue estoppel as:

… (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies …..

It seems to me that in the circumstances of this case, all that had to be considered on both motions before the court was whether the criteria set out in Angle had been met and, if they had been met, whether the court should exercise its discretion against applying the doctrine of res judicata.

[30]         In my opinion, it cannot be said that the question of liability for the collision was adjudicated upon in the Small Claims proceeding.  Having decided as a fact that the parties left their respective stop signs at “more or less the same time”, the Small Claims judge failed to consider the other important factual question before him – whether Ms. Bui had her left-turn signal on.  Furthermore, he failed to consider the rules of the road imposed upon each of the parties under the applicable sections of the Motor Vehicle Act, R.S.C.B. 1996, c. 318 and how those rules would apply to the determination of responsibility in tort for the collision.  This was not a case of inevitable accident or of no negligence.  One or the other of the parties was wholly responsible, or liability was to be divided.

[31]         The reasons of the Small Claims judge fell well short of deciding the negligence question.  That issue remains alive in the Supreme Court action.  The res judicata arguments of both parties fail.

[32]         The above is enough to allow this appeal.

Defence Medical Exams – Best Expert Not Required to "Level the Playing Field"

Written by admin on . Posted in Civil Procedure, independent medical exams, Uncategorized. 52 Comments on Defence Medical Exams – Best Expert Not Required to "Level the Playing Field"

(Update: November 14, 2011 – The case discussed in the below post in now publicly available.  Master Scarth’s reasons for judgement can be accessed here)
Further to my previous posts about Independent Medical Exams in BC Supreme Court Injury Claims unpublished reasons for judgement recently came to my attention (Hou v. Kirmani BCSC Vancouver Registry, 20091119) dealing with the ability for a Defendant to have an injured party undergo multiple exams where the first defence expert feels an opinion from a second expert would be of benefit.
In this recent case the Plaintiff was a pedestrian who was apparently struck by a vehicle.    She suffered “multiple injuries including traumatic brain injury“.  One of her most serious injuries was a foot and ankle injury.  She consented to attend a Defence Medical Exam with an orthopaedic surgeon.  He provided the following opinion:
(the Plaintiff) would benefit from an opinion from a foot and ankle orthopaedic surgeon, as further surgical intervetnion may be of benefit to her and this might include surgical correction of her deformity so as to allow her to bear weight and walk short distances more appropriately. …I do not feel further passive treatment for her left foot and ankle will be of any benefit to her..
The Defendant brought a motion to compel the Plaintiff to be examined by a second orthopeadic surgeon, this time one with a specialty in foot an ankle injuries.  The Plaintiff opposed arguing a further exam was not necessary.  Master Scarth agreed and dismissed the motion.  In doing so the Court made the following comments about the purpose and limitations of Defence Medical Exams:
…I am not of the view that Rule 30 is intended to allow follow-up on every issue which is raised by experts who examine the plaintiff.
Dr. Arthur was chosen, and I accept the submissions of the plainitff in this regard, with the knowledge that there were concerns regarding this plaintiff’s ankle.  Thee is, it is fair to say, nothing new since Dr. Arthur was retained, apart from his reticence to provide an opinion.  And he does not say, I do not believe, that he is not qualified to give the opinion which is missing, if it is missing.  He simply says, I think it is fair to conclude, that in the best of all worlds she would be seen by an orthopaedic surgeon with a subspeciality training.  In my view that is not the purpose of Rule 30.
As mentioned above, this is an unreported judgement but if anyone wants a copy feel free to contact me and I’ll be happy to e-mail a copy of the transcript.

ICBC Injury Claims and the Relevance of Vehicle Damage

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases, Uncategorized.


The law has become clear that while ICBC’s LVI policy is not a legal principle and is not a valid legal defence, the amount of vehicle damage is a factor judges and juries can consider in a BC injury claim.  Reasons for judgement were released this week by the BC Court of Appeal demonstrating this.
In this week’s case (Cahoon v. Brideaux) the Plaintiff was injured in a car crash.  There was minimal vehicle damage.  The Plaintiff’s claim was largely rejected by a Jury at trial.  Prior to giving their verdict the Trial Judge told the Jury that “From that evidence you are asked to draw inferences about how hard Mrs. Brideaux struck Mrs. Cahoon, and from those inferences you are asked to draw another inference about what injuries that impact caused to Mrs. Cahoon. ”
The Plaintiff appealed arguing in part that the Judge was wrong to give the above instruction to the Jury.  The BC Court of Appeal disagreed and gave clear reasons indicating that a Court can consider the amount of vehicle damage during an injury claim.  Specifically the High Court stated as follows:

[82] The issue addressed in the passage from Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (S.C.) quoted in Lubick was whether the “no crash, no cash” policy of the Insurance Corporation of British Columbia was founded on a valid legal or medical principle.  Mr. Justice Thackray noted that no evidence was called to substantiate the theory that minimal impacts could not cause injury and went on to resolve the nature and extent of the plaintiff’s injuries in that case on the lay and medical evidence before him.  Similarly, it appears the issue addressed in this passage in Lubick was the defence contention that such a minimal impact could not have injured the plaintiff.  However, these passages do not represent a statement of legal principle that in low-impact collision cases, the defendant has the burden of proving the plaintiff’s injuries were not caused by the collision.  It is well-settled law that the burden is always on plaintiffs in these cases to prove the nature and extent of their injuries and to prove they were caused by the defendant’s negligence.

[83] Here, the respondents did not argue that Mrs. Cahoon could not have been injured in the collision.  Rather, they conceded she suffered some injury but submitted that she was exaggerating her injuries and that she had not proven that all of the injuries and losses of which she complained were caused by the collision.  The burden of proof of these matters lay with Mrs. Cahoon – the respondents did not bear the burden of proving that the injuries she claimed were not caused by the collision.

[84] The evidence of automobile damage was relevant to the question whether Mrs. Cahoon suffered the injuries she claimed as a result of the collision.  In R. v. Watson (1996), 108 C.C.C. (3d) 310 at 323-24 (Ont. C.A.), Doherty J.A explained relevance as follows:

… Relevance … requires a determination of whether as a matter of human experience and logic the existence of “Fact A” makes the existence or non-existence of “Fact B” more probable than it would be without the existence of “Fact A.”  If it does then “Fact A” is relevant to “Fact B”.  As long as “Fact B” is itself a material fact in issue or is relevant to a material fact in issue in the litigation then “Fact A” is relevant and prima facie admissible.

[85] Human experience and logic, qualities for which juries are particularly valued, are the essence of common sense.  They suggest there is a relationship between the force of an impact between two vehicles and the resulting damage to the vehicles.  Thus, evidence of minimal damage makes it more likely the force of the impact was minimal (Fact A).  Human experience and logic also suggest there is a relationship between force exerted on the human body and injury caused by the force.  Thus, evidence of minimal force applied to the human body tends to make it more probable that the resulting injury would not be serious (Fact B).  It follows that the evidence of vehicle damage was relevant on this issue and the trial judge did not err in instructing the jury that they could use it as circumstantial evidence.

[86] It follows, as well, that I would reject Mrs. Cahoon’s submission that the trial judge erred in permitting the jury to use this evidence to “override” the expert medical opinion evidence on causation.  The weight to be given low-impact evidence will depend on the particular circumstances of each case.  Here, Mrs. Cahoon led expert medical opinion evidence that the collision caused her very serious injuries.  These opinions on the causation issue were based on various facts, including Mrs. Cahoon’s descriptions of her injuries and the dynamics of the collision.  The jury was required to consider the expert opinions but was not bound to accept them.  Rather, it was for the jury to determine what weight to assign to those opinions after weighing all of the evidence, including the circumstantial evidence of the force of the collision.

Expert Evidence: Fact vs. Opinion

Written by admin on . Posted in Civil Procedure. 139 Comments on Expert Evidence: Fact vs. Opinion

When advancing a personal injury lawsuit in British Columbia expert evidence plays a key role.  Be it the diagnosis of injury, prognosis, future care needs, disability or other topics there are no shortage of areas that call for the assistance of expert evidence.
When preparing for trial notice of expert opinion evidence has to be given in compliance with Rule 40A (after July 1, Rule 40A will be replaced with the new Rule 11).
Just because a professional such as a doctor is giving evidence does not necessarily mean that the Rule regarding expert opinion evidence is triggered.  If an expert is giving purely factual evidence then Rule 40A does not apply.  However, if the evidence is not purely factual but also contains opinion then the notice period in Rule 40A is likely triggered.  So what exactly is an expert opinion?  Last week reasons for judgement were released discussing this distinction.
In last week’s case (Anderson v. Dwyer) the Court was asked whether a chiropractor interpreting an X-ray was factual evidence or opinion evidence.  Mr. Justice Schultes provided the following very useful analysis:

[13] In determining the admissibility of Dr. Wooden’s evidence, it is crucial to bear in mind the distinction between expert opinion and factual evidence that is given by potential expert witnesses.  As the learned author of Phippson on Evidence (16th ed.) helpfully observes at para. 33-10, p. 972:

There is an important if elusive distinction to be made in the categorization of expert evidence.  It is generally accepted that there is a difference between evidence of fact and evidence of opinion notwithstanding that it may be difficult to identify the line which divides the two.  It is also well understood that in practice a witness of fact may not be able entirely to disentangle his perceptions from the inferences he has drawn from them.  Although the courts often talk of “expert evidence” as if it were a single category representing in every case an exception to the rule against the reception of opinion evidence, it is suggested that a similar distinction exists in the evidence of experts and it is one which has considerable relevance both to the procedural aspects and to the assessment of the weight of expert evidence.  Expert witnesses have the advantage of a particular skill or training.  This not only enables them to form opinions and to draw inferences from observed facts but also to identify facts which may be obscure or invisible to the law witness.  The latter might simply be described as scientific evidence; the former as expert evidence of opinion.  A microbiologist who looks through a microscope and identifies a microbe is perceiving a fact, no less than the bank clerk who sees an armed robbery committed.  The only difference is that the former can use a particular instrument and can ascribe objective significance to the data he perceives.  The question of subjective assessment and interpretation which is the essence of opinion evidence hardly enters into the matter at all.  An example of the dichotomy can be seen in the case of a conflict between experts on handwriting as to the authenticity of a document.  By virtue of their training, such experts would be able to distinguish parts of letters or techniques of word formation which a layman would be unable to observe.  This is the scientific part of their work.  The question of which features are significant and the inferences to be drawn from them are questions of judgment, assessment, opinion.  This distinction which has now been accorded a measure of judicial recognition is thought to be of some practical utility in considering the weight of evidence given by experts both taken in isolation and when assessing the merits of two competing theories.

[14] This distinction is a very meaningful one in this case.  Any evidence by Dr. Wooden seeking to offer an opinion about the plaintiff’s injuries, such as the inferences to be drawn from the observations in the x-rays or with respect to the cause or mechanism of the injury, would be prohibited because of the plaintiff’s failure to comply with Rule 40A.  However, the witness’s factual narrative of the actions he took and the observations he made, including describing without interpretation, the anatomical features he observed in the x-rays does not amount to offering an opinion and does not offend the Rule.  The fact that he brings special training or experience to bear in having taken those actions and made those observations is not determinative.  It is whether he draws inferences or offers opinion beyond what the actual evidence itself is capable of revealing.

[15] In this regard, I consider this kind of factual evidence to be analogous to those matters described by Madam Justice Garson as being “more in the nature of observations” as opposed to inferences having complex interpretive or diagnostic components when she described how their inclusion in records sought to be admitted as business records did not offend Rule 40A in Egli v. Egli, 2003 BCSC 1716 at para. 25 which was relied on by the defendant in submissions.

Do Parties Have to Disclose Documents They Will Use to Impeach Opposing Expert Witnesses?

Written by admin on . Posted in Civil Procedure, Uncategorized.


When a party to a personal injury lawsuit wishes to use documents at trial those documents have to be disclosed to the opposing side as per the BC Supreme Court Rules otherwise the evidence may not be admissible.  Two recent cases from the BC Court of Appeal have clearly highlighted this.  Today, reasons for judgement were released by the BC Supreme Court considering the scope of documents that need to be disclosed.
In today’s case (Beazley v. Suzuki Motor Coroporation) the Plaintiff called a witness to give expert evidence.  The witness testified that he had limited knowledge of something known as the “Critical Sliding Velocity standard” and that he had “never proposed such a standard to the National Highway Traffic Safety Administration“.
On cross-examination the Defence lawyer produced a letter written by the witness addressed to the National Highway Traffic Safety Administration apparently “supporting the use of a Critical Sliding Velocity Standard“.
The Plaintiff’s lawyer objected to this cross examination arguing that the letter was not listed on the Defendant’s list of documents and therefore could not be used.  Mr. Justice Goepel disagreed finding that documents that are used solely for impeaching an expert wittiness’ credibility do not necessarily have to be listed.  Specifically the Court reasoned as follows:

[7] A party is obliged to list all documents that fall within the purview of Rule 26(1) including those documents that can properly be described as forming part of the solicitor’s brief: Stone v. Ellerman, 2009 BCCA 294, 92 B.C.L.R. (4th) 203; Dykeman v. Porohowski, 2010 BCCA 36. Neither Stone, Dykeman or the cases cited therein deal with the use of documents being introduced to impeach the general credibility of an expert witness.

[8] A party who chooses to call an expert vouches for that expert’s credibility. The type and nature of documents that might challenge such credibility are endless. They may include articles, letters, testimony, speeches or statements that the expert has made in the past. There may be other articles which critically challenge the expert’s conclusion. Most documents which go to challenge an expert’s opinion or credibility are not documents which are related to the matter in question in the action. They only become relevant because of the expert’s testimony and do not fall under the purview of Rule 26.

[9] This ruling does not apply to all documents that the defendants may wish to put to this or other witnesses. If a document is otherwise related to a matter in question, it is not protected from disclosure merely because it will be used in cross examination or forms part of the solicitor’s brief.

[10] The August 5, 1994 letter, however, only becomes relevant because of Mr. Heitzman’s testimony. It was not a document that need be listed and the defendant is entitled to use the document in cross examination.

[11] To the extent the plaintiffs object to other documents the defendants might wish to put to Mr. Heitzman, those objections will be dealt with as they arise.

BC Injury Claims and Production of Pre Accident Medical Records

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Further to my previous post discussing this topic reasons for judgement were released today dealing with the extent of pre-accident record disclosure ICBC (or other defendants) are entitled to when a Plaintiff sues for damages for personal injuries in the BC Supreme Court.
In today’s case (Moukhine v. Collins) the Plaintiff was involved in a 2007 BC car crash.  The Plaintiff sued for damages.  In the Statement of Defence the lawyer plead that the injuries are not the result of an accident, but are were in fact pre-existing conditions.  (This is a rather ‘boilerplate’ pleading raised by the defence in almost every ICBC injury claim).  The defence lawyer then asked that the Plaintiff provide medical records which pre-date the accident by as much as 15 years.
The Court was asked to decide  “whether a mere allegation in a pleading that a plaintiff’s injuries are not the result of an accident, but are caused by his or her pre-accident health condition is enough, without more, to entitle a defendant to production of pre-accident medical records“.
Mr. Justice Harris went on to hold that in personal injury cases, the mere allegation by the Defence lawyer of a pre-existing condition may be enough to compel the disclosure of pre-accident records.  Specifically the Court reasoned as follows:

[18] In my opinion, nothing in Dufault is authority for the proposition that pleadings alone are insufficient to make an order under Rule 26(11) or that evidence is always necessary. Similarly, Dhaliwal does not address the relevance of pleadings as a basis for making a Rule 26(11) order. There is no reference in the judgment  to the issues pleaded in the action and whether pleadings  would have affected the outcome. The case deals only with the sufficiency of the evidence that was before the court. I do not draw from the case the proposition that pleadings standing alone and defining the issues in the action are never a sufficient basis to satisfy the court to make a Rule 26(11) order.

[19] In Marsh v. Parker, 2000 BCSC 1605 at para. 9, Master Horn concluded that Dhaliwal stood for the proposition that “there must be something either by way of evidence or by way of the pleadings which raises the plaintiff’s pre-injury state of health as an issue.”  I agree. Indeed, in Creed v. Dorio, [1998] B.C.J. No. 2479, Mr. Justice Edwards, at paragraph 13, rejected the proposition that “some evidence”  was necessary to establish relevance….

[22] In an appropriate case pleadings  are a sufficient basis on which to exercise a discretion to order production of at least some documents. In some cases it is reasonably obvious that records  may contain relevant (in the sense that term is used in Peruvian Guano) information and should be produced, subject to production following a Jones orHalliday format. Evidence may be required in order to resist a production order. That does not mean, however, that an order will always go on the basis of pleadings alone and it may be premature in some circumstances  to make such an order before discovery (see, for example, Mehdipour v. Shingler (18 March 2009), Vancouver M080517 (S.C.)). Merely pleading pre-existing conditions does not deprive the court of its discretion to refuse to make the order sought when, for example, there is no air of reality about the alleged connection between the documents sought and the issues in the action. Evidence may therefore, on occasion,  be required to establish the relevant connection to overcome the conclusion that the documents are  irrelevant to the claim.

I should point out that as of July, 2010 the new BC Supreme Court Civil Rules come into force and the tests for what types of documents need to be exchanged will be narrower so it will be interesting to see how this area of law changes under the soon to be in place new system.