Wright v. Brauer, 2010 BCSC 1282
This court application was made to force the injury claimant to attend a medical examination set up by ICBC representing the drivers in a motor vehicle accident case. This request was made only two months and one week before the scheduled trial. The personal injury lawyer representing the injury claimant gave ICBC two medicolegal reports. One was prepared by the claimant’s family physician and the other by a physical medicine and rehabilitation specialist who the claimant saw at the request of her injury lawyer. The medical reports said that the injury claimant was suffering from chronic back pain as a result of the motor vehicle accident.
Rule 11-6(3) our the British Columbia Civil Rules requires a litigant to send expert reports to all other parties at least 84 days before the scheduled trial date. The expert deadline in this case had already passed. However, Rule 11-6(4) permits a party to serve response reports up to 42 days before trial and that deadline had not passed.
An injury claimant is usually required to attend a medical examination at the request of the other injury lawyer representing ICBC or another insurance company in a typical personal injury lawsuit. Importantly, Rule 7-6(1) of the Supreme Court Rules state:
(1) If the physical or mental condition of a person is in issue in an action, the court may order that the person submit to examination by a medical practitioner or other qualified person, and if the court makes an order under this subrule, the court may also make
(a) an order respecting any expenses connected with the examination, and
(b) an order that the result of the examination be put in writing and that copies be made available to interested parties of record.
The purpose of this rule is to put both the injury claimant and ICBC on an equal footing with respect to medical evidence in the lawsuit. In the context of a lawsuit seeking compensation for personal injuries, the injury claimant and ICBC are on equal footing with respect to medical evidence if they can independently obtain medical evidence and it is sent to the other side in accordance with the Rules.
That rule applies equally to injury claimants as well as insurance companies like ICBC. In the normal course ICBC and other insurance companies will wish to protect their right to present expert evidence at trial by giving getting the expert report before the deadline. But the court retains a discretion to admit responsive evidence of which notice has not been given. The court quoted Kelly v. Kelly (1995), 20 B.C.L.R. (3d) 232 (S.C.) where Mr. Justice Williamson said:
I would restrict, of course, as courts I think must, the practice of having opinion evidence without notice strictly to truly responsive rebuttal evidence, and I think that if that rule is carefully observed, there should be no difficulties.
In this case because of timing , the defendants are limited to what Mr. Justice Williamson referred to as “truly responsive rebuttal evidence”. The real question on this application was whether the medical examination should be ordered to enable the defendant to file responsive evidence. In Kroll v. Eli Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7, Sanders J., as she then was, noted that “true response evidence, does not permit fresh opinion evidence to masquerade as answer to the other side’s reports”.
The ICBC lawyers representing the other drivers did not explain why a medical examination is required so late in the litigation and so close to trial, other than a statement by a legal assistant that the lawyer says such is necessary to properly defend the lawsuit and to respond to the injury claimant’s medical reports.
The court stated that, ” the bare assertion reported to a legal assistant in this case is insufficient to support the request and the application was dismissed. Posted by Mr. Renn A. Holness
Issue: Should ICBC and other insurance companies be able to force injury claimant’s to attend a medical examinations 2 months before trial?