In this car accident injury ( Lewis v. Lewis, 2010 BCSC 1925) the personal injury lawyers representing the claimant allege various injuries the most serious of which relates to an injury to her right shoulder. The court was told that she suffers from a hemiparethesisof her left side, making even more important the use of her right arm. The claimant was apparently examined by the ICBCs’ expert Dr. Leith resulting in a report wherein he presumably accepted the fact that the injury to the plaintiff’s rotator cuff was as a result of the accident. This doctor later changed his opinion and as the Judge pointed out, , “Mr. Burgess, I should note, also had in hand the medical records upon which Dr. Leith has so dramatically altered his opinion.”
This was an application by the defendants, ICBC, seeking an order that the claimant re-attend an examination for discovery for the purposes of answering questions on issues of causation in respect of her injuries. The claimant already had an examination for discovery. As the judge stated,
“The case law stands for the proposition that where a further examination for discovery is sought, there is a heavy onus on the applicant to justify that further examination, and that to justify same they must demonstrate that the complexion of the case has materially changed as a result of the passage of time, new heads of damage are being advanced, or intervening events having occurred since the last discovery, which would materially alter the prosecution of the case and the defence of it….Alternatively, a party could produce evidence to show that full and frank disclosure was not made at the first discovery.”
In this case the defendants, ICBC, together with its medical advisor, failed to see what was there to be seen. Specifically, they failed to note and act upon the references to previous shoulder complaints in clinical records that were in the hands of both the medical practitioner and the solicitor conducting the discovery. Accordingly the application for a further discovery by the defendant was dismissed. Posted by Mr. Renn A. Holness
Issue: Should ICBC be able to ask unlimited questions to an injury claimant under oath?