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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.

ICBC Claims and Recording 'Independent' Medical Exams

Reasons for judgement were released today dealing with several motions before the BC Supreme Court in a motor vehicle accident claim.
The Plaintiff was self represented in this Supreme Court action.  (This case is worth reviewing on this point alone as the judgment illustrates some of the challenges courts sometimes face when dealing with unrepresented parties in Supreme Court actions).
One of the motions before the court was to compel the Plaintiff to attend an independent medical examination with a doctor of ICBC’s choosing.  While the Plaintiff did not object to being examined, she wished for several conditions to be set including the right to record the examination.
In not granting this condition Master Young reviewed several authorities dealing with the issue of recording independent medical exams.  Master Young concluded that in this case there were no cogent reasons to permit audio recording.  She referred to the leading BC Court of Appeal case on this topic of  Wong v. Wong, 2006 BCCA 540 which discussed the the factors BC Courts should consider when hearing such applications, namely:

(a)        the absence of evidence that an audio tape recording would inhibit or impair the examination;

(b)        evidence that the plaintiff had a poor memory or was forgetful;

(c)        the absence of evidence that the examining doctor objected to the use of a tape recorder;

(d)        evidence that the plaintiff had difficulty communicating and understanding, perhaps related to lack of fluency in English or the language of the examining doctor;

(e)        the likelihood that a tape recording might lead to settlement short of trial; and

(f)         the likelihood that an audio tape recording would contribute to the fairness of the trial.

In the same case the Court of Appeal noted the following about recording independent medical exams:

While I am of the view that a master or judge has a discretion under Rule 30 to permit the use by a plaintiff of an audio tape recorder on an independent medical examination, it is in my opinion a discretion that should be exercised rarely and with restraint, and only in circumstances where there is cogent evidence that the use of an audio tape recording will advance the interests of justice.

More on ICBC Injury Claims and Independent Medical Exams

Reasons for judgement were released today dismissing an ICBC application for a second independent medical exam in a tort claim and granting an ICBC application for a ‘work capacity evaluation’.
Applications for ‘independent medical examinations‘ under Rule 30 of the BC Rules of Court arise frequently in ICBC claims when the Defendant claims that they need such an examination to ‘level the playing field‘. These applications are discretionary and given the frequency of such applications being adjudicated in our courts there is no shortage of useful precedents reported.  Today’s case doesn’t create any new law, I report it nonetheless to give my readers insight into the types of procedural disputes sometimes arising in ICBC claims.
The Plaintiff in this case had been assessed by a variety of physicians in a medico-legal context.  The Defendant wished to have the plaintiff assessed by a physiatrist and a work capacity evaluator.
In dismissing the application for an assessment by a physiatrist the court states as follows:
[4] It was submitted by defendant’s counsel that Dr. Maloon is an orthopedic surgeon, whereas Dr. Hirsch is a physiatrist, and it is important to have a rebuttal report, if you will, from a physiatrist in order to put the defendants on equal footing.  I disagree with that submission.  I disagree because as has been pointed out to me, Dr. Maloon had extensive clinical and consultation reports from a number of practitioners, including Dr. Jaworski, who was a treating physiatrist.  As well, he had the clinical records and notes from Mr. Haleta’s treating general practitioner, among others.  There comes a time when the parties can no longer seek to usurp the function of the court or the jury by asking for continuous expert reports from various specialists.  These are matters for counsel to deal with by way of cross-examination, especially when there are conflicting opinions.  There is nothing new here that has arisen that would give the plaintiff an unfair advantage over the defendant.  Nothing of concern should arise merely by the fact that the defendants chose to have the plaintiff examined by an orthopod and only sometime later find out that counsel for the plaintiff had their client seen by a physiatrist.  Accordingly, I dismiss paragraph 1 of the applicants’ notice of motion.
In granting the order compelling the Plaintiff to attend a work capacity evaluation the court held as follows:
[5] A number of specialists/physicians who saw Mr. Haleta for other matters have recommended that he be seen by experts in functional and vocational capacity.  In particular Dr. Reid, who is a psychologist, recommended, and I believe that Dr. le Nobel — correct me if I’m wrong — made a similar recommendation.  It would seem to me that it would be appropriate for both parties to have the plaintiff seen by somebody to make a vocational capacity evaluation of Mr. Haleta, which would be of assistance to the court and to the jury in this particular case.  Accordingly, I order that Mr. Haleta do attend the offices of Mr. Christopher Cook for the purposes of a work capacity evaluation to be performed by Mr. Cook, and that is to be held on Tuesday, the 18th of November, commencing at 9:00 a.m. at suite 202, 20689 Fraser Highway, Langley, British Columbia.