Privileged Report Detrimental To Plaintiff's Claim Declared Reasonable Disbursement
Just because a medico-legal report proves harmful to a Plaintiff’s claim does not make the costs of obtaining the report, in and of itself, an unreasonable disbursement. Reasons for judgment were released last week by the BC Supreme Court, Prince George Registry, demonstrating this.
In last week’s case (White v. Reich) the Plaintiff was injured in a 2008 collision. He sustained a chronic knee injury which impacted his ability to work. The Plaintiff had a history series of heart problems which also impacted his choice of working in remote locations. His treating cardiologist did not wish to be involved in litigation and the Plaintiff retained an independent physician to address this issue. Ultimately the independent physician provided an opinion which was detrimental to the Plaintiff’s litigation interests indicating “that the heart condition was in no way related to the motor vehicle accident and that in any event, if the plaintiff were to follow a regime of rehabilitation and medication he could seriously reduce the risk of further heart problems. In short, the evidence established that with proper actions, there was no physical reason for the plaintiff not to return to his Northern Alberta position.”
The Plaintiff claimed privilege over this report and it was not exchanged with defence counsel. The matter settled prior to trial. The Defendant argued the disbursement associated with this report was unreasonable. Master Caldwell disagreed finding simply because the report was ultimately unhelpful to the Plaintiff’s claim the decision to explore the issue was reasonable. In allowing the disbursement the Court provided the following reasons:
[19] The applicable legal principles were canvassed and summarized recently by Master MacNaughton in Turner v. Whittaker, 2013 BCSC 712 at para. 5. In particular it is noted that the test is not one of hindsight and that a proper disbursement may be one which is ultimately not necessary but which was reasonably incurred for the purposes of the proceeding.
[20] In this regard, counsel for the defendant acknowledged that if the report had determined that the most recent heart problems had been caused by or contributed to by the accident and that that was the cause of the plaintiff’s being unable to return to work, there would be no question that the report was not only reasonable and proper but in fact necessary to the proper conduct of the litigation.
[21] In all of the circumstances, I am of the view that the course of investigation with Dr. Isserow, which culminated in and included his report, was reasonable and proper at the time that it was undertaken and accordingly the disbursements which relate to Dr. Isserow are allowed as presented.