In this exceptional case, the Court of Appeal reviewed,but did not weaken, the requirement to attend medical examinations in personal injury civil cases. This decision will not affect claimant requirements to attend ICBC medical examinatons for accident benefits. ICBC has a unique set of laws that govern their conduct differently than other parties to a lawsuit.
In a unanimous three panel decision, the Court of Appeal made it clear,
The primary purpose of Rule 7‑6 is to put the parties on an equal footing with respect to medical evidence.(Tran v. Abbott, 2018 BCCA 365 at para 40)
In the underlying personal injury lawsuit the claimant alleged various soft tissue injuries and neurological or psychological injuries. The expert deadline was within a few weeks of the Appeal decision and the trial was set to be heard by a jury.
The Court of appeal said that in general, the steps necessary to achieve equality between the parties is a matter of discretion for the chambers judge. However, the ruling in this case precluded that equality. In exercising its discretion on an application pursuant to Rule 7‑6, the court must consider the effect of refusing the order sought on the conduct of the trial.
In this case, the judge concluded that parts of the first expert’s report went beyond his expertise, and thus a report from the second expert would “bolster” the first report. However, the practical effect of the ruling was to preclude the defendant from obtaining a report from an expert with appropriate qualifications on a live issue, the etiology of the claimant’s complaints.
The judge erred in her application of the Rule and the appeal was allowed. This case does not make it any easier for ICBC to get a second medical exam as they still have to prove they are on an unequal footing for trial.
Read our review of the leave to appeal decision for Tran v. Abbot.
ICBC medical examinations for claimants pursuing ICBC accident benefits are different than court ordered assessments in a civil claim. The ICBC medical assessments can be arranged in accordance with the Insurance Vehicle Act and the Regulations and can be requested multiple times throughout a claim. Speak to a lawyer for advice about the specific limits to ICBC medical examinations that apply to your case.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.- Working for the injured since 1995.