Uncertain Prognosis Results in Injury Trial Adjournment


As previously discussed, it is risky to settle an ICBC claim prior to knowing the long-term prognosis of your injuries.  Without a prognosis it is difficult to value a case and therfore difficult to gauge a fair settlement amount.
The same caution holds true for taking a case to trial.  Absent recovery or a meaningful prognosis it will be difficult for a judge or jury to properly value the claim.  If a case is set for trial but the prognosis is unknown an adjournment can often be obtained pursuant to Rule 12-1(9).  This was demonstrated in short but useful reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.
In last week’s case (Cochrane v. Heir) the Plaintiff was involved in a 2006 collision.  She was scheduled to undergo surgery in February, 2011 and her lawsuit was set for trial shortly thereafter.  The Plaintiff was concerned that her prognosis would not be known at the time of trial and applied to adjourn.  The Defendant opposed arguing that the upcoming surgery was not related to the collision and the adjournment was not necessary.
Mr. Justice Harris concluded that ultimately it would be for the jury to decide whether the surgery was related to the crash, however, since it may be related an adjournment was in the interests of justice.  The Court provided the following reasons:

[3] There is some medical evidence before the court to the effect that the plaintiff’s condition, prognosis and ability to return to work cannot fairly be assessed until after the surgery and after sufficient time has been allowed for rehabilitation.

[4] Counsel for the defendant opposes the adjournment because this is, he submits, a unique case. In a nutshell, he says that the delays and behaviour of the plaintiff in presenting the case are characteristic of her conduct in other matters she has been involved in. In effect, he submits that I should discount the evidence in support of the adjournment. In particular, I should be sceptical of the suggestion of any causal link between the accident and the condition that has led to the proposed surgery, as well as the need or the surgery itself. All an adjournment will do is expand the trial and encourage further delay and obstruction in bringing this matter to trial.

[5] Since I have decided that the interests of justice require an adjournment and since I am the trial judge, albeit with a jury, I have concluded that it would be unwise to comment directly on the evidence referred to by the parties in support of their positions. The issue of the causal connection between the accident, the plaintiff’s current condition and her alleged inability to work, are the primary matters that will be before the court for adjudication. Not to grant an adjournment would work relatively greater prejudice to the plaintiff than to the defendants by constraining her opportunity fully to present her case whatever its merits at trial.

Adjournment Applications, Adjournments, bc injury law, Cochrane v. Heir, Mr. Justice Harris, 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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