(Please note the topic discussed in this post should be reviewed keeping a subsequent October 2010 BC Court of Appeal in mind)
Further to my previoius article on this topic, if you are advancing a BC Injury Claim and intend to rely on X-Rays, MRI’s or other diagnostic studies which demonstrate injury in support of your case it is vital that you serve the opposing party appropriate Notice under the Rules of Court. Failure to give proper notice can keep not only the actual studies out of Court but also the opinions of radiologists discussing what these studies show. Excluding such evidence can be fatal to a claim. 2 judgements were released today demonstrating this principle.
In the first case (Anderson v. Dwyer) the Plaintiff was injured in 2004 BC Car Crash. At trial her lawyer attempted to put X-rays into evidence and to have a chiropractor give ‘evidence with respect to the contents of the x-rays‘. The Defendant objected arguing that appropriate Notice of the proposed exhibit and the expert opinion was not given. Mr. Justice Schultes agreed and in doing so gave the following reasons:
 The stated relevance of this evidence is that the x-rays taken after the accident will allegedly show some abnormality in some of the plaintiff’s vertebrae that could have been caused by the accident. This, it is said, will rebut the defendant’s position that the plaintiff’s pain is largely the result of a degenerative condition rather than of the accident.
 The basis for the objection to Dr. Wooden’s evidence is that he is an expert witness and no notice of his evidence has been given as required by Rule 40A of the Rules of Court. In addition, the defendant has not been given an opportunity to inspect the x-rays as required by Rule 40(13). ..
…While on the 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.
 As to the lack of compliance with Rule 40(13) the cases make it clear that in such circumstances the court has a discretion to admit the evidence (see, for example, Golden Capital Securities Ltd. v. Holmes, 2002 BCSC 516), but that in exercising its discretion it should take into account the absence of any proper explanation for the failure to disclose…
 In this case, the explanation is that counsel for the plaintiff thought it sufficient to simply notify the defendant of the existence of the x-rays and invite counsel to contact Dr. Wooden directly to inspect them.
 I do not think such a passive approach was sufficient. The requirement in the Rule that the parties be “given the opportunity to inspect” an item connotes some positive action on the part of the party in possession of it. At the very minimum, efforts should have been made by counsel for the plaintiff to facilitate the viewing of the x-rays. It was not appropriate for the defendant to be invited to seek out the treating chiropractor himself even if consent by the plaintiff was said to be readily forthcoming.
 The very importance to her case ascribed by the plaintiff to the x-rays speaks to the necessity of her having obtained and disclosed copies of the exhibits in a proactive manner.
 There being no satisfactory explanation of the failure to comply with Rule 40(13) I decline to exercise my discretion to allow copies of the X-rays themselves to be admitted in evidence. Because a witness may refresh his memory from anything that will assist him that process, even if that source itself is inadmissible (see R. v. Fliss, 2002 SCC 16 at para. 45) Dr. Wooden may refresh his memory by reviewing the x-rays should the need arise during his evidence.
In the second case released today, Gregory v. ICBC, the Plaintiff wished to put an expert report into evidence that gave an opinion based on the assumption that “there has been a partial tear of (the Plaintiff’s) subscapularis tendon.” The doctor relied on a radiologist’s interpretation of an MRI as the source of this opinion. The radiologists report was not put into evidence and the radiologist was not called as a witness.
The Defence lawyer argued that the opinion of the expert should be inadmissible in these circumstances. The Court agreed. In doing so Madam Justice Kloegman gave the following reasons:
 Dr. Chu’s second report discloses that his opinion is based on an assumption that there has been a partial tear of the subscapularis tendon. The defendant takes issue with that alleged fact. The plaintiff has taken no steps to prove the truth of this assumption. Originally, she did not intend to enter the radiologist reports interpreting the MRI scans. Now counsel advises that she could lead them through Dr. Chu. However, all this would do is show the source of Dr. Chu’s assumption. It would not prove the truth of the radiologist’s interpretation, which in effect is just another expert opinion.
 Although the radiologist reports are expert opinions, the plaintiff has not served them pursuant to Rule 40, nor has she given notice of any intention to call the radiologists. Therefore, it is obvious that she does not intend to prove as a fact this assumption about the partial tear. Dr. Chu’s second report is based solely on this assumption of a partial tear. There will not be any evidence proving the truth of this assumption, therefore, any opinions that are based on the partial tear as the primary assumption must be considered irrelevant and inadmissible.