Injury Trial Adjourned Due to Delayed Medico-Legal Report


Reasons for judgement were recently published by the BC Supreme Court addressing the adjournment of a personal injury trial where the Plaintiff’s independently retained physician failed to author a medico-legal report in a timely fashion.
In the recent case (Barlow v. Smoch) the Plaintiff was injured in a 2006 collision.  He was the passenger in a vehicle which collided with a dump truck-trailer.  He apparently suffered serious injuries including a “severe traumatic brain injury with left sided hemiparesis“.
In the course of the lawsuit the Plaintiff hired a variety of independent experts to provide medico-legal opinion evidence at trial.  One of the experts was a physiatrist who assessed the Plaintiff.  The Plaintiff requested a report however no report was provided within the timelines required by the Rules of Court.  The Plaintiff’s other experts required the physiatrist’s report in order to finalize their opinions.  Because the physiatrist did not author the report in a timely fashion the Plaintiff was unable to adequately prepare his case for trial.
The Plaintiff brought an adjournment application.  The Defendant opposed, arguing an adjournment would be prejudicial.  Master Caldwell ultimately granted the adjournment finding that neither party were to blame for the need of the adjournment and that keeping the current trial date would result in prejudice to the Plaintiff.  In granting the adjournment the Court had the following critical comments for the Plaintiff’s expert:

[20]         The determination I have to make now is whether the plaintiff would be so prejudiced by having this matter proceed to trial, in light of all of the circumstances, or whether the defendant would be prejudiced to the extent that there would be some waning of the memory of the defendant Hilborn.

[21]         Remembering of course that the plaintiff is a severely brain?injured individual with hemiparesis, it would behoove me ultimately to weigh the prejudice in favour of the plaintiff and make a determination that the trial ought to be adjourned, not through any fault of counsel or the parties, but more I think because there is an unexplained failure to provide a report following a medical assessment by a medical professional.

[22]         When I say unexplained, I do not say that meaning plaintiff’s counsel has not explained it; I mean (the physiatrist) has not explained her lack of attention to requests for the report following her assessment of the plaintiff on the 31st of May last, which I think is unacceptable.

[23]         I say parenthetically that this may be a matter that counsel and the parties should be taking up with the College of Physicians and Surgeons, because in this case it is, without a doubt, in my view, (the physiatrist’s) lack of production of the document requested that has ultimately resulted in the adjournment of the trial.

[24]         As for costs, there is not a lot of blameworthy conduct here over which costs could be assessed.  I think every party has had a legitimate rationale for having the positions they have taken with respect to the particular application, which I find to be somewhat unique in the circumstances.  So I will say that I think each party should bear its own costs of this application.

Adjournment Applications, Adjournments, Barlow v. Smoch, bc injury law, master taylor, Rule 12, Rule 12-1, Rule 12-1(9)

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ERIK
MAGRAKEN

Personal Injury Lawyer

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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