In this Victoria personal injury case( Hamilton v. Demandre,2010 BCSC 1914) the injury claimant was involved in 2 car accidents 8 years apart. Lawyers for ICBC as insurer for the defence sought a court order that the claimant attend and submit to 2 medical examinations.
The injury claimant resisted the court application on the basis that the medical examinations were neither necessary on the evidence nor allowed under the Supreme Court Civil Rules. Furthermore, the claimant said that she would be prejudiced if the application was granted as there was not enough time between the examination and trial to undergo an examination by her own medical experts.
Just before the second accident, the court dismissed the defendants’ application in the first car accident for an order that the claimant be examined by a psychiatrist: Hamilton v. Pavlova, 2010 BCSC 493. However, the injury claimant did undergo a psychiatric examination at the request of ICBC, the defendant, in this lawsuit. That examination was conducted by Dr. Alexander Levin on November 24, 2010. The results of Dr. Levin’s examination are contained in a report issued five days later.
This is a case that ICBC must prove there was good reason for the short timing of the medical assessments. In Wright v. Brauer, 2010 BCSC 1282, Justice Savage considered an application brought on similar time lines. As Master Bouck in Chambers pointed out, “The court discusses the application of Rule 11‑6(4), finding that it was enacted to “fill a lacuna in the Rules”: para. 12. The court also finds that under this new Rule, and considering the timing of the application, the applicant’s relief was limited to “truly responsive rebuttal evidence”: para. 14. Justice Savage could find no basis on the evidence before him to show why a physical examination was required to produce a responsive report.”
The court also pointed to the reasons of Justice Cullen in Luedecke v. Hillman, 2010 BCSC 1538, an appeal from an order which allowed a medical examination to provide “truly responsive” evidence. The court upheld the master’s order, determining that the necessary evidentiary basis for an examination was found in the material presented. In doing so, the court confirms that:
To reach the requisite threshold under Rule11-6(4) the applicant must establish a basis of necessity for the examination to properly respond to the expert witness whose report is served under subrule (3) by the other party: para. 54.
It was obvious that ICBC/defence clearly had a theory that the claimant was malingering . However the court found that the applicatants failed to meet the necessary evidentiary threshold to support an order for the medical examinations requested. The application was dismissed. Posted by Mr. Renn A. Holness
Issue: Should ICBC and other insurance companies be allowed to force injury claimants to submit to a physical medical examination?