IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101230

Docket: 10 3133

Registry:
Victoria

Between:

Robyn Mary
Hamilton

Plaintiff

And:

Margot Lyth
Demandre

Defendant

Before:
Master Bouck

Oral Ruling Re: Medical Examinations

In
Chambers

[1]            
THE COURT: In this personal injury
action, the defendant seeks an order that the plaintiff attend and submit to (a)
an independent medical examination with Dr. Desmond Bell on January 7,
2011, at 12:00 p.m., and (b) balance testing conducted by Art Malinson at 8:00
a.m. that same day.

[2]            
Dr. Bell is an ear, nose, and throat
specialist (or “ENT”) who in turn recommends the balance testing.

[3]            
The plaintiff resists the application on the
basis that the examination is neither necessary on the evidence nor permissible
under the Supreme Court Civil Rules. Furthermore, the plaintiff says
that she will be prejudiced if the defendant’s application is granted, as there
will be insufficient time between now and trial to undergo an examination by
her own ENT specialist.

[4]            
The trial of this action is scheduled to proceed
for 20 days in March 2011. Liability, causation, and damages will be in dispute
at that trial.

[5]            
All of the facts relevant to this application
are set out in the application record. For the purposes of these reasons, I
will attempt to summarize those facts.

[6]            
The trial to be heard in March 2011 will concern
two actions brought by the plaintiff. The first action relates to injuries
suffered by Ms. Hamilton in a 2002 motor vehicle accident (the “First Action”).
The defendants in the First Action are represented by separate counsel. The
accident, which is the subject matter of this action, occurred on April 6,
2010. Counsel for the defendant in this action was appointed in August 2010.

[7]            
It was agreed by all parties concerned that the
trial of the two actions would be heard at the same time. The March 2011 trial
date had been reserved in September 2009.

[8]            
The medical evidence and the pleadings reflect
the allegation that the second motor vehicle accident aggravated injuries
and/or symptoms suffered in the 2002 accident. The plaintiff does not allege
that the second accident caused any new injuries.

[9]            
The plaintiff’s ongoing complaints include
visual vestibular mismatch with associated dizziness, motion sickness, balance problems,
and double vision.

[10]        
The plaintiff is a realtor by profession.
Following the 2002 accident, Ms. Hamilton returned to her work as a
realtor, despite ongoing complaints and alleged MVA‑related symptoms.
Ms. Hamilton has not returned to work in any capacity since the April 2010
accident. According to some of the medical information before me, it is
Ms. Hamilton’s inability to drive, due to the visual vestibular mismatch,
which prevents her return to the workforce.

[11]        
At the request of the defendants in the First Action,
the plaintiff has been examined by Dr. Moll, a neurologist, and
Dr. Warren, an orthopaedic surgeon. The examinations occurred before the
second accident. Both of these physicians opine that the plaintiff’s complaints
are psychosomatic in nature.

[12]        
In March 2010, or just prior to the second
accident, the court dismissed the defendants’ application in the First Action for
an order that the plaintiff be examined by a psychiatrist: Hamilton v.
Pavlova, 2010 BCSC 493. However, the plaintiff did undergo an independent
psychiatric examination at the request of the defendant in this action. That
examination was conducted by Dr. Alexander Levin on November 24, 2010.
The results of Dr. Levin’s examination are contained in a report issued
five days later.

[13]        
In October of this year, thus prior to
Dr. Levin’s examination, the plaintiff served, pursuant to Rule 11‑6(3),
a number of expert reports, including a medical‑legal report by
Dr. Neil S. Longridge, an ENT specialist, dated November 15, 2007 and
a neurological physiotherapy reassessment report prepared by Cathy Coshman,
dated August 23, 2010.

[14]        
Dr. Longridge diagnoses the condition of
visual vestibular mismatch and opines that the 2002 accident is the probable
cause. Depending on the outcome of this application, the plaintiff does not
intend to tender any further evidence from Dr. Longridge, other than the
doctor’s raw test data.

[15]        
Ms. Coshman, who saw the plaintiff both
before and after the second accident, opines that the second accident
"almost nullified" improvement in Ms. Hamilton’s balance, ocular
vestibular disturbances, and cognitive problems following the first accident,
but also that Ms. Hamilton is recovering slowly and, as of August 2010,
was still within the spontaneous recovery period. Further, Ms. Cossman
states that while it is expected that the various symptoms, including the
ocular vestibular disturbances, will improve over time, there will remain some
irreversible damage. Ms. Coshman recommends that the plaintiff remain off
work for a further period of time and limit her driving.

[16]        
The reports of Ms. Coshman and
Dr. Longridge were provided to Dr. Levin in advance of the November 24
examination. In his report, Dr. Levin mentions the visual vestibular
mismatch, but says that he will "defer a clinical opinion regarding
Ms. Hamilton’s physical injuries to specialists in internal medicine, ENT,
neurology, and orthopaedic surgery."

[17]        
He opines that there are no underlying
psychological/psychiatric disturbances that would explain the plaintiff’s complaints
of motion sickness and double vision.

[18]        
It would appear that the defendant in this
action considered the possibility of an independent medical examination by an
ENT specialist around the same time that Dr. Levin was retained. The
appointment with Dr. Bell for January 7 was obtained on November 12. On
December 7, defence counsel made the request that the plaintiff attend the
examination with Dr. Bell. That request was rejected by plaintiff’s
counsel one week later.

[19]        
On December 10 and 15, respectively, the
plaintiff served on the defendant two additional reports. The first, a report
of an occupational therapist dated November 5, 2010, purports to show the
plaintiff’s future care costs. The second report is that of the plaintiff’s
family physician, Dr. Ballard, dated November 27, 2010. The deadline for
serving expert reports pursuant to Rule 11‑6 (3) expired on December 13,
2010. The defendant is apparently not objecting to the late delivery of
Dr. Ballard’s report.

[20]        
Consistent with Ms. Coshman’s opinion, the
occupational therapist states that the plaintiff’s balance problems worsened
after the second accident. Dr. Ballard confirms the existence of ongoing
visual vestibular complaints and recommends continued vestibular physiotherapy
"for the immediate future and as required after that.”

[21]        
More generally, Dr. Ballard recommends that
the plaintiff attend a multidisciplinary pain clinic and "would be"
referred to various specialists, including an ENT physician, if her symptoms
persist and “for monitoring purposes.” Dr. Ballard does not state that
such a referral is necessary at this time.

[22]        
Dr. Ballard concludes that the 2010
accident has set back the plaintiff’s recovery completely, and also that her
symptoms, in concert with pain and fatigue, are completely disabling.
Furthermore, Dr. Ballard does not expect that Ms. Hamilton will return to
her work as a realtor.

[23]        
In rejecting the request to have
Ms. Hamilton examined by Dr. Bell, plaintiff’s counsel takes the
position that the defendant is attempting to introduce new evidence after the
deadline for delivery of such evidence has expired. In addition, if the
examination proceeds, the earliest opportunity for the plaintiff to be examined
by her own ENT specialist would be February 2011, or on the eve of trial. Thus,
the plaintiff will be prejudiced in pursuing this exam when she should be
preparing for trial.

[24]        
The deadline for delivery of any rebuttal reports
by the defendant is January 24, 2011. The plaintiff was given notice of
this application on or about December 20, 2010.

[25]        
The defendant relies on Rule 1‑3 (2), 7‑6,
8‑1, 11‑6 (4), and 11‑6 (8) of the Supreme Court Civil
Rules. Some of those rules relate to the defendant’s request for production
of the raw data and are not applicable to the application that is considered in
these reasons.

[26]        
Rule 7-6 governs the granting of orders
for a physical examination. It is the successor to former Rule 30(1). Rule 11‑6
(4) addresses the timing of delivery of any rebuttal reports, while 11‑6
(8) concerns the production of documents related to an expert report. Rule 1‑3
(2) addresses the object of these other Rules, and, in particular, the
overriding consideration of proportionality when applying any Rule.

[27]        
In addition, the parties referred me to a number
of decisions of this court addressing circumstances under which an independent
medical examination will or will not be ordered. I do not intend to canvass all
of these authorities which, in my view, can be seen to fall into two categories.
The first category are those cases where the application for an independent
medical examination is brought well before trial, and indeed before all of the
plaintiff’s experts’ reports have been served. The second category of cases is
where the court is considering an application for an examination that purports
to be a true rebuttal to the plaintiff’s evidence.

[28]        
In the circumstances of this action, this
application must necessarily fall within this second category.

[29]        
In Wright v. Brauer, 2010 BCSC 1282, Justice
Savage considered an application brought on similar timelines to the case at
bar. The court discusses the application of Rule 11‑6(4), finding
that it was enacted to “fill a lacuna in the Rules”: para. 12. The court
also finds that under this new Rule, and considering the timing of the
application, the applicant’s relief was limited to "truly responsive
rebuttal evidence": para. 14. Justice Savage could find no basis on
the evidence before him to show why a physical examination was required to
produce a responsive report.

[30]        
More recently, the same issue was considered by
Justice Cullen in Luedecke v. Hillman, 2010 BCSC 1538, an appeal from a
master’s order which allowed an examination to provide “truly responsive”
evidence. The court upheld the master’s order, determining that the necessary
evidentiary basis for an examination was found in the material presented. In
doing so, the court confirms that:

To reach the requisite threshold
under Rule 11-6(4) the applicant must establish a basis of necessity for
the examination to properly respond to the expert witness whose report is
served under subrule (3) by the other party: para. 54.

[31]        
The question of whether the ultimate opinion
obtained was truly responsive and thus admissible was left for the trial
judge’s determination.

[32]        
In the matter before me, the defendant hangs her
hat, if you will, on the report of Drs. Longridge and Ballard (and to a
lesser extent Dr. Levin), as well as the opinions offered by
Ms. Coshman and the occupational therapist.

[33]        
In a nutshell, the defendant submits that an ENT
examination is required to rebut the opinion that the plaintiff’s ocular
vestibular problems have worsened as a result of the second accident.

[34]        
Dr. Longridge’s report predates the second
accident; as such, it is not of assistance to the defendant’s argument. If
anyone were to rely on this report to obtain a rebuttal examination, it would
be the defendants in the First Action.

[35]        
In any event, the complaints of ocular
vestibular problems are of longstanding. This is not a case of a new diagnosis
or even a suggestion that a referral to such an ENT specialist is medically
required. Dr. Ballard merely opines that a referral to such a specialist
is a possibility if the plaintiff’s symptoms continue. Moreover, Dr. Moll,
whose opinion was clearly available to the defendant for some time, discusses
these symptoms in his report of January 21, 2009.

[36]        
As submitted by the plaintiff, the defendant
chose to pursue a psychiatric, rather than ENT opinion, knowing that the ocular
vestibular complaints formed a significant part of the plaintiff’s claim.

[37]        
As for the other opinions offered, the experts
are in agreement that the plaintiff’s condition has worsened, but that treatment
may yet alleviate or reduce those symptoms.

[38]        
The defence clearly has a theory:  the plaintiff
is malingering and/or suffers a somatoform disorder. To have the plaintiff
examined by an ENT specialist for an assessment that will either be diagnostic
in nature and thus not true rebuttal; or merely to prove a negative, that is to
confirm that there is no physiological cause for the balance and visual
disturbances, would be inconsistent not only with the authorities cited to me,
but also with the purposes of Rule 7‑6 and 11‑6 (4).

[39]        
On the material before me, I conclude that any
report forthcoming from Dr. Bell would be fresh opinion evidence
masquerading as answer to the plaintiff’s reports.

[40]        
In short, the defendant has failed to meet the
necessary evidentiary threshold which might support an order for the
examinations requested. The application is thus dismissed with costs in the
cause.

                  “C.
P. Bouck”              

Master C. P. Bouck