As discussed in prior blog posts, ICBC’s medical experts are hired to provide expert opinions to defend against injury claims. There are a number of strict guidelines which govern experts and their expert reports. One guideline requires all court experts to be impartial, independent and absent of bias. If the expert is found to be biased and partial by the court, then his/her expert’s report will be ruled inadmissible. Another guideline restricts experts from assessing or providing an opinion on an issue that is for the trial judge to determine such as the injured claimant’s credibility as stated by the Supreme Court of Canada:
It is a fundamental axiom of our trial process that the ultimate conclusion as to credibility or truthfulness of a particular witness is for the trier of fact, and is not the proper subject of expert opinion.
A judge or jury who simply accepts an expert’s opinion on the credibility of a witness would be abandoning its duty to itself to determine the credibility of the witness.
Accordingly, the case law clearly supports the view that it is inappropriate to accept an expert report that provides an opinion with respect to credibility.
In Didyuk v. Redlick 2021 BCSC 2272, ICBC hired Dr. Jonathan Hawkeswood, a specialist in Physical Medicine and Rehabilitation, to conduct an independent medical examination of the injured claimant. In his report, Dr. Hawkeswood provided an opinion assessing and commenting on the injured claimant’s credibility based on his observations of him both in the waiting room before the assessment and also during the assessment. The injured claimant’s lawyer objected to the admissibility of his report on the basis that he incorrectly commented on the ultimate issue of credibility which showed his bias and lack of impartiality. In examining his expert report, the trial judge referenced the following problematic sections of Dr. Hawkeswood’s expert report:
- “. . . based on my observations, I question Mr. Didyuk’s honesty with reporting of his symptoms. In other words, I strongly feel he was misleading me.”
- “…I question the reliability of all of his subjective symptoms. The preponderance of DSM-V criteria are predicated on authentic subjective mental health complaints. I am not convinced he has significant psychopathology, based on reasons provided already. Malingering seems like an appropriate term, recognizing this is impossible to prove one way or another. I nonetheless believe malingering probably does actually exist in some select instances and, based on my relatively lay understanding of this challenging concept, it would seem appropriate here.”
- “Frankly, Mr. Didyuk’s dramatic presentation during today’s assessment raises the question of what injuries he actually sustained by way of these three minor . . . vehicle accidents.”
- with respect to the plaintiff’s medication use, “In all honesty, I actually question whether he is taking all of these pills . . .”
- “fact that [the plaintiff] presented as being more physically disabled than he probably is outside of the clinical setting.”
- Dr. Haweswood’s observations of the injured claimant in the waiting room: “He seemed concentrated and engaged in his [telephone] conversation, and did not appear to be obviously affected by any medical condition…he was wearing a leather jacket and his light‑coloured hair was combed backwards. My point is that he looked well.”
- Dr. Hawkeswood then contrasted his observations of the injured claimant in the waiting room to his assessment of him in the examining room: “his hair changed from being slicked back to now looking like he just woke up and got out of bed, dishevelled and matted forward on his forehead”
- In addition to his own personal observations, Dr. Hawkeswood also noted in his report what his receptionist indicated to him that the injured claimant “may be a challenging patient“
- Dr. Hawkeswood also commented that the injured claimant “seems to pretend not to hear me at times” and “what I find interesting is that the little plastic tab that holds the price tag is still attached to the glasses, making me wonder if he has ever needed to put them on before.”
- When describing his physical examination of the injured claimant, Dr. Hawkeswood commented that his presentation was “dramatic” and “wildly exaggerated“
The trial judge excluded Dr. Hawkeswood’s entire report in finding that he was unable or unwilling to provide the court with fair, objective and non-partisan evidence by incorrectly opinion on the issue of credibility.