IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101119

Docket: M104622

Registry:
New Westminster

Between:

Marilyn Joyce
Lewis

Plaintiff

And:

Robert Andrew
Lewis and Mark Anthony Buchanan

Defendants

Before:
The Honourable Mr. Justice Harvey

Oral Reasons for Judgment on Application re Further
Examination
for Discovery of the Plaintiff by the Defendants

In
Chambers

[1]            
THE COURT: This is an application by the defendants seeking an
order that the plaintiff re-attend an examination for discovery for the
purposes of questioning the plaintiff on issues of causation in respect of the
plaintiff’s injuries.

[2]            
This action arises from a motor vehicle accident which occurred on May 5,
2005.  There are various injuries alleged to have been sustained by the
plaintiff, the most serious of which relates to an injury to her right
shoulder.  I am told that she suffers from a hemiparethesis of her left side,
making even more important the use of her right arm.

[3]            
Pleadings have long since been completed. In the Statement of Defence,
the defendants raised the issue, if I can put it without trying to sound
uncharitable, of whether or not the injuries were caused by the accident, and
asserted that they did not, that they believe they were as a result of
pre-existing condition or congenital defect.  Those are the pleadings the
parties intend to rely on at trial.

[4]            
The plaintiff was apparently examined by the defendants’ expert Dr. Leith
at some time, resulting in a report wherein he presumably accepted the fact
that the injury to the plaintiff’s rotator cuff was as a result of the
accident.

[5]            
At the time he rendered that opinion, many months ago, he had, at hand, extensive
medical records provided through the discovery process, some of which he then
reviewed. In August of 2010 he has done an about face on his previous opinion
on the issue of causation. With the aid of the medical records which have been squarely
in his possession for a period of time, Dr Leith has come to the conclusion
that the rotator cuff injury likely pre-existed the accident of 2005.  Indeed,
some support for that is found in the medical report of the plaintiff’s medical
expert, Dr. Regan, who in a subsequent report says that there is a
likelihood that there was at least a small tear in the plaintiff’s rotator cuff
pre-existing the accident.

[6]            
The plaintiff at an examination for discovery conducted in June of 2009,
left open a continuation of the discovery, but it is clear from the affidavit
material of Mr. Dinsley and of the discovery transcript itself that
counsel the discovery open for the express purposes of obtaining an update of
the plaintiff’s condition closer to trial. Surgery was scheduled after the
discovery and the proposed continuation was to be limited to a “a few
questions" pertaining to its aftermath.

[7]            
Mr. Burgess, I should note, also had in hand the medical records
upon which Dr. Leith has so dramatically altered his opinion.

[8]            
The case law stands for the proposition that where a further examination
for discovery is sought, there is a heavy onus on the applicant to justify that
further examination, and that to justify same they must demonstrate that the
complexion of the case has materially changed as a result of the passage of
time, new heads of damage are being advanced, or intervening events having
occurred since the last discovery, which would materially alter the prosecution
of the case and the defence of it.

[9]            
Alternatively, a party could produce evidence to show that full and
frank disclosure was not made at the first discovery.

[10]        
Here that is not the case. Here the defendant, together with its medical
advisor, failed to see what was there to be seen. Specifically, each failed to
note and act upon the references to previous shoulder complaints in clinical
records that were in the hands of both the medical practitioner and the
solicitor conducting the discovery.  I am not satisfied that the heavy onus
that is set forth in the decisions I have been referred to, one of which was Sutherland
(Public Trustee of) v. Lucas, has been met.

[11]        
Accordingly the application for a further discovery by the defendant is
dismissed.

[12]        
Costs to the plaintiff in any event of the cause.

“Harvey J.”