In this sensationally important personal injury case the Court of Appeal has made it very clear that consulting reports must substantially comply with the Rules to be admissible as expert reports (Healey v. Chung, 2015 BCCA 38). This makes it very difficult for the personal injury claimant to get opinion evidence into court as “clinical records” are not considered expert reports. Top personal injury lawyer’s must now be able to distinguish between consultation reports and experts report, making the right changes to advance a report in proper form.
The claimant was seeking an award of $485,000 to $1,037,000 but the trial judge only awarded him $50,652.64. He appealed contending that the judge’s assessment of his credibility was wrong because it was heavily influenced by consulting reports wrongly admitted and the judge misapprehended the evidence in matters relevant to the assessment of his credibility. The Court of Appeal agreed.
The Court of Appeal found that the trial judge was wrong in receiving as expert reports, consulting reports from physicians to his doctor disclosed to the defendant in the family physician’s clinical records and misapprehending aspects of his medical files.
At the time of this pedestrian accident the claimant was walking southbound in a marked crosswalk across 41st Avenue at Clarendon Street in Vancouver with the green light in his favour. When the claimant was hit by the vehicle his body ended up on the road by the driver’s side door of the vehicle. The final diagnosis recorded in the hospital records was blunt trauma and minor contusions.
The defendants served the consultation reports under the Rules and the claimant did not respond. The Court of Appeal found that it was not necessary to respond for the following reason:
[23] Forthrightness between counsel is favoured and is to be expected in litigation. Yet I cannot say there was anything to which we have been referred that put the positive legal duty on [the claimant] to object under those Rules for the reason that the consulting reports sent to Dr. Kuo and disclosed as part of her clinical records were simply not ‘expert reports’ as regulated by the Rules. While they may be professional opinions from one doctor to another in the course of treatment, the impugned documents do not comply with R. 11-2; I do not consider they carry the basic hallmark of an ‘expert report’, being an opinion intended by the author, at some point, to be presented for the assistance of the court. Significantly, they contain none of the information that is essential to qualification of the author as an expert, nor the information reviewed by the author by which the court may assess the cogency of the opinion.
[24] As I do not consider that these clinical records can be considered to be ‘expert reports’ as that term is used in the Rules, entitled to the privileged treatment for receipt of hearsay evidence discussed by Mr. Justice Hutcheon, I conclude that R. 11-6(10) and (11) did not require a notice of objection.
There was ample medical evidence before the court, absent the opinions from the excluded reports that would have aided the trial judge in findings of fact. “Further, it was open to the defendant to develop her own body of medical opinion and to advance it in proper form, including as to the required description of qualifications and experience and listing of opinion sought and matters considered.” The Court saw no compelling reason to derogate from the requirements of either R. 11-2 or R. 11-6 in this case.
Furthermore the Court of Appeal was of the view on the issue of credibility that it was not open to the trial judge to discount the claimant’s reports to doctors as exaggeration because of his account of the accident unless the judge concluded the claimant was not so informed, a finding that the judge did not make and an issue he did not address. Nor was it open to attribute to the claimant a “story” of the accident to which he professed no independent recollection. As the Court of Appeal stated,
[47] I am mindful of the deference this court must accord a judge’s findings of credibility. However, where evidence is misapprehended that bears upon credibility in a way that is material to the outcome, the basis for this court’s interference is established. In this case, the finding against the appellant’s credibility pervades the judge’s rejection of his claim for greater damages. I consider that in the area of the three symptoms, and [the claimant’s] lack of independent recollection of the accident, the judge’s comments fatally undermine his finding of credibility of [the Claimant] and bear upon the reliability of the expert reports.
The appeal was allowed. Accordingly, as this matter was returned to the trial court for a new trial.
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ISSUE: Do you think restricting expert reports will make a personal injury lawsuit even more difficult for claimants to pursue?
Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness B.A. LL.B.