In this truck accident injury claim (Parsons v. Mears, 2011 BCSC 397) the claimant, a Victoria resident, was operating a truck when it became stuck in mud. A good samaritan, Mr. Mears, attempted to pull the truck out of the mud using a cable and tractor. The tractor flipped and trapped Mr. Mears.
The claimant alleges that he suffered various injuries when attempting to rescue Mr. Mears. The injury claimant said that he suffered resulting pain and stiffness in his lower back, right knee and left hip. The insurance company defending the claim was seeking a court order requiring the claimant to attend to two medical examinations to verify his injury.
The claimant consented to attending both a medical examination and a work capacity evaluation. The claimant simply asked that such appointments be scheduled in Victoria and that he not be required to travel to Vancouver, BC. Thus, the narrow issue for determination on this application was the role that convenience plays when considering an order under Rule 7-6 of the Supreme Court Civil Rules.
The court found that the following principles are applicable to this discussion:
a. The purpose of an independent medical examination is to put the parties on a basis of equality. It is not for the plaintiff to decide which doctor can examine him or her on behalf of the defendant: Sinclair v. Underwood, 2002 BCSC 354 at para. 5;
b. Nonetheless, an independent medical examination is an examination conducted by a person appointed by the court. The convenience of the plaintiff is to be considered in appointing such a person: Willis v. Voetmann, [1997] B.C.J. No. 2492 (S.C.) at para. 5;
c. Convenience to the plaintiff is but one of several factors for the court to consider in exercising its discretion under Rule 7-6:Adelson v. Clint (1993), 16 C.P.C. (3d) 209 (B.C.S.C.) at para. 17; and
d. It may be appropriate for the court to consider appointing a specialist other than the proposed examiner but only where the plaintiff demonstrates, on a preponderance of evidence, sufficient grounds to justify the court in concluding that its discretion should not be exercised in favour of the appointment of the defendant’s nominee: Sinclair v. Underwood and Adelson v. Clint, supra.
In terms of convenience to the claimant, the court found that the authorities to do not say that a medical examination should, or even might preferably, take place at the examinee’s town or city of residence.
It is almost always an inconvenience to a claimant to attend a medical examination. An employed person might miss a day’s pay; a homemaker with young children might be required to pay for childcare. However, “that inconvenience can be remedied at trial by an award of damages for this suggested loss.” In other words an injury claimant can claim the costs of attending examination against the person at fault for the injury. Master Bouck however went on to state,
“On a very rare occasion, the court may order that the defendant’s nominee travel to the plaintiff’s town or city of residence to conduct the independent examination or assessment. Such an order might be appropriate where the examination or assessment is requested so late in the day that travel time would unduly interfere with the plaintiff’s trial preparation. The alternative to such an order would be to deny the defendant’s entitlement to an examination altogether: White v. Gait, 2003 BCSC 2023.”
In this case, there was no objection to the qualifications of either of the experts. The claimant can obviously travel although the defendant may need to offer special accommodations for that travel.
In short, convenience to the claimant is one of several factors for the court’s consideration on this type of application. It is not the predominant factor and by itself does not provide justification for denying the defendant’s entitlement to medical examinations under the civil rules. The claimant was ordered to attend the examination in Vancouver. Posted by Mr. Renn A. Holness
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