Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, excluding an expert report from evidence for multiple short-comings. The Court’s criticism included the fact that the report failed to properly set out the expert’s qualifications, offended the ‘ultimate issue‘ rule, failed to list documents relied on in forming the expert’s opinion and lastly for being ‘advocacy‘ in the guise of opinion.
In this week’s case (Turpin v. Manufacturers Life Insurance Company) the Plaintiff purchased travel insurance with the Defendant. While on a trip to California she fell ill and required medical treatment. Her expenses quickly grew and exceeded $27,000. The Defendant refused to pay relying on a pre-existing condition exclusion in the policy. The Plaintiff sued and succeeded.
In the course of the trial the Defendant tried to introduced a report from a doctor of internal medicine to “provide an opinion as to whether (the Plaintiff’s) medical treatment between October 5, 2007 and October 9, 2007 was the result of a pre-existing condition as defined in the Travel Insurance Policy“.
Mr. Justice Wilson ruled that the report was inadmissible for multiple reasons. The case is worth reviewing for the Court’s full discussion of the shortcomings of the report. In my continued effort to highlight expert reports being rejected for ‘advocacy’ I reproduce Mr. Justice Wilson’s comments on the frowned upon practice of experts using bold font to highlight portions of their opinion:
Finally, the plaintiffs object that the report is advocacy on behalf of the defendants.
This objection is based, in part, upon the author’s use of bold font and italicized portions of the report.
In Warkentin v. Riggs, this court was faced with an expert’s report which adopted “… a particular format”:
He uses bold font to highlight words and phrases which benefit the plaintiff’s claim and support his diagnosis. This is apparent in his review of Ms. Warkentin’s history and medical reports. That which is contrary to the plaintiff’s claim or does not support his diagnosis is either omitted or presented in non-bolded font. This emphasis in support of the plaintiff’s claim and the exclusion of contrary matters is advocacy.
I adopt those comments as applicable in this case.
This use of emphasis is not a practise to be encouraged. In this case, it may have been introduced by counsel’s letter of instructions, which suggested that the author may “indicate the relative degree of importance of any particular fact or assumption”.
If the author of the report regards a factor as a major premise leading to the conclusion, then it should be so stated. Not left to unexplained emphasis in the body of the report.
 It was for those foregoing reasons that I ruled the report inadmissible.
I have written about the role expert witnesses play in ICBC Injury Claims on several occasions. These past posts have largely dealt with expert medical witness who typically address the nature and extent of injuries caused by motor vehicle collisions. What about experts addressing the issue of fault, can they play a role in BC personal injury claims?
The answer is yes but for a variety of reasons such witnesses typically are not involved in claims arising from car crashes. This is so because in most car crash cases addressing fault expert evidence is not needed because judges and juries are able to use their common sense and collective life experience to determine who is at fault. However, sometimes more unusual circumstances outside of most people’s typical life experience cause a collision such that expert evidence may be necessary. Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, addressing this issue.
In yesterday’s case (MacEachern v. Rennie) the Plaintiff was severely injured while “walking or riding her bicycle along the King George Highway…when her head struck the side of a large tractor-trailer“.
The Plaintiff’s lawyer tried to introduce an expert witness to give opinion evidence on the standard of care of professional drivers of tractor-trailers, whether the driver in this case met that standard and lastly with respect to evidence regarding the characteristics of large tractor trailers.
The defence lawyers objected to this witness claiming expert evidence was not necessary to assist the court in making findings of fault. Mr. Justice Ehrcke of the BC Supreme Court disagreed and permitted this evidence in and in doing so engaged in a useful discussion about the role that expert witnesses play generally in BC cases addressing the issue of fault. For your convenience I reproduce the highlights of this discussion below:
In Burbank v. R.T.B.,2007 BCCA 215 our Court of Appeal observed that while expert evidence on the standard of care is not usually required in negligence actions, it may be capable of assisting the trier of fact and admissible as necessary in certain cases, particularly where the subject matter is beyond the common understanding of the judge or jury.
In the present case, while most adults in British Columbia may have some experience in driving motor vehicles, few have experience in driving large commercial tractor-trailers. Few would know from their common experience what the handling characteristics of such vehicles are, or what the visibility is from the perspective of a driver in the cab, or what the common driving practices are of professional drivers of such rigs.
Not only have most persons never had the experience of driving such vehicles, most persons would not even be legally permitted to drive them, since to do so one must first satisfy the requirements to obtain a special class of driver’s licence…
In Tucker (Public Trustee of) v. Asleson (1993), 78 B.C.L.R. (2d) 173 (C.A.), Southin, J.A. specifically addressed the issue of expert evidence in motor vehicle negligence actions and observed that a distinction ought to be made between cases involving motor cars and those involving large transport vehicles. She wrote at pp.194-195:
To my mind, motor car negligence cases differ significantly from all other actions in which one person alleges that the acts or omissions of another in breach of a duty of care have done him injury.
First, the Legislature has laid down for motorists many rules of the road and many requirements concerning the equipping of vehicles, all of which the motorist is expected to obey and which he expects others to obey. The only other aspect of ordinary life so governed is that of the movement of vessels upon certain navigable waters. But I do not say that obedience to these rules relieves the motorist from all other obligations. SeeBritish Columbia Electric Railway v. Farrer,  S.C.R. 757.
Secondly, experts are not called to prove the standard of care which is appropriate. Each judge brings into court his or her own notions of what constitutes driving with reasonable care. As I said inMcLuskie v. Sakai in a passage quoted in the appeal from my judgment (1987), 12 B.C.L.R. (2d) 372 at 378 (C.A.):
The difficulty with these motor car cases and matters of negligence is that whatever we may be saying, what we are doing as judges is, in fact, applying our own knowledge of driving to the facts in the absence of any other evidence. That is what a judge does every time he says that the defendant should have avoided an obvious obstruction. I, on the balance of probabilities, am not satisfied that a competent driver coming upon that ice on that bridge on that morning with both hands on the wheel could have done other than Mr. Sakai did. Therefore, it follows that I do not think he was negligent.
To put it another way, in motor car cases the judge is his or her own expert. That is not to say that there could not be expert evidence on the proper way, for instance, for the driver of a mammoth transport vehicle to drive. If, on such an issue, the plaintiff called an expert to say that such a vehicle should not be driven under certain circumstances at more than 40 miles per hour and the defendant called another expert who said the contrary, the learned trial judge could and usually would be obliged to choose one expert over the other.
Expert evidence on the standard of care has been considered in a number of negligence cases involving the operation of heavy vehicles. See for example Millott Estate v. Reinhard,  2 W.W.R. 678 (Alta. Q.B.) and Fuller v. Schaff, 2009 YKSC 10.
I am satisfied that Mr. Eckert should be qualified as an expert witness and permitted to give opinion evidence in the areas outlined above. I find that he has the necessary qualifications and that the evidence is necessary in the sense explained by the Supreme Court of Canada in Mohan. What weight should be attached to his evidence is, of course, a matter that can only be determined at the end of trial.
If you would like further information or require assistance, please get in touch.
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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