This is a car accident psychiatric condition personal injury case(De Sousa v. Bradaric and Borthwick, 2011 BCSC 1134) and the court application was about the psychiatric injuries being claimed. The defence requested of the court that the personal injury claimant be required to attend for a second psychiatric defence medcial examination.
In rejecting the request the judge pointed out,
“ In all the circumstances, I just cannot see a basis for the second opinion. It is a multi-stage test, of course. There are aspects of this both counsel have properly put before the court, starting with as Mr. McIvor has pointed out the Chief Justice in Wildemann (1990), 50 B.C.L.R. (2d) 244 (C.A.). It must be an exceptional case that justifies the second IME or one that is required to place the parties on equal footing. I cannot see that in this particular case. What is, I think, concerning the defence, I infer, is concerns they have with the quality or reliability of a report obtained in this specific area of expertise.
 The court should be concerned according to McKay v. Passmore, 2005 BCSC 570, that the matter is something that could not reasonably be seen or anticipated or dealt with at the time. Well, again, I do not see that that applies in this case. There was a previous committal for psychotic reasons. Counsel called and advised that she had been to the hospital, possibly not for psychotic reasons, possibly as I said earlier for cognitive reasons; possibly he did not have in hand the medical records. He probably did not. It sounds to me like it was on an emergency basis, but surely that should have given rise to real concerns on the part of any inquiring professional such as Dr. Davis.”
The judge concluded that the lawyer for the defence would reasonably have been concerned or pointed out to Dr. Davis that there has been a psychotic condition. What was really important to the judge, however, was that Dr. Davis on several subsequent occasions reviewed the history of the matter with updated or further delivered reports and records but has stood by his opinion quite, in his words, “rigidly and has categorically rejected any diagnosis of a psychotic condition.”
Finally, the court considered proportionality to the extent that it is required under the Rules of Court . However the judge was apprehensive of a loose application of proportionality stating that is correct to place limitations on proportionality and just because you have a larger claim or matter that is developing into a major personal injury claim does not mean all rules are off, ” It simply adds possibly some qualification to the other rules and considerations…”
Take a read of my review of Labrecque v. Tyler, 2011 BCSC 429 when ICBC was denied the right to a medical exam of a car accident claimant. Posted by Mr. Renn A. Holness