IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110413

Docket: M092083

Registry:
Vancouver

Between:

Rheis Benedetti

Plaintiff

And

Terri Ann Breker

Defendant

Before:
Master Baker

Reasons for Judgment

ISSUE

[1]            
The plaintiff applies for an order that Dr. Roy O’Shaughnessy be
appointed as a joint expert in these personal injury proceedings.  I dismissed
the application at the hearing with reasons to follow and these are those
reasons.

BACKGROUND

[2]            
The plaintiff alleges that he was injured in a motor vehicle accident on
December 11^th, 2005 and that his injuries included closed head and
psychiatric injury.  He was 17 years old at the time of the accident.  His
counsel argues that his psychiatric health, both pre- and post-accident will be
factors in the trial (currently scheduled for April, 2012), and that the
psychiatric implications of his injuries will affect his choice of careers.

[3]            
Mr. Benedetti was seen shortly after the accident for emergency
psychiatric assessment by Dr. Derryck Smith and has received further
psychiatric treatment with Dr. Tanya Wulff.  Further, he was assessed in March
2008 by Dr. Thomas Kay, a neuropsychologist.  The plaintiff has listed five
medical reports as privileged including, it is presumed, Dr. Kay’s report.

[4]            
There has been no Case Planning Conference (CPC) scheduled in this
matter to date.

PARTIES’ POSITIONS

[5]            
Ms. Price-Stephens for Mr. Benedetti argues that the appointment of Dr.
O’Shaughnessy as a joint expert is both cost-effective and proportional, one of
the overarching goals of the new Rules of Court.  She emphasizes that the use
of joint experts is routine in other jurisdictions and that, essentially, it is
time British Columbia embraced the practise.

[6]            
Mr. Nugent for the defence raises several objections to the order. 
First, he argues that the plaintiff has not followed proper procedure and that
the appointment of a joint expert in the first instance must occur at a
properly convened CPC.

[7]            
Second, defence counsel notified Dr. O’Shaughnessy in December 2009 of
the likelihood of his conducting an independent medical examination of Mr.
Benedetti for the defence.  Defence counsel then notified plaintiff’s counsel
February 2^nd, 2011 of their intention to proceed with the IME with Dr.
O’Shaughnessy, and on March 2^nd the plaintiff indicated for the
first time the proposal that Dr. O’Shaughnessy be a joint expert.

[8]            
Mr. Nugent argues that the appointment of Dr. O’Shaughnessy now as a
joint expert will pre-empt the defence’s right to an IME with him.  This
pre-emption, it is submitted, is not a trivial thing.  First, if the joint
appointment proceeds and the defence still wish an IME, there would be the
presumed delay in arranging a new psychiatrist.  More importantly, however, the
defence would be prevented in its choice of which medical expert will assist
the defence.  The physician who conducts an IME often does more than examine
the plaintiff; he or she may also offer subsequent litigation advice in meeting
the various issues the case presents.  Moreover, as Mr. Nugent points out, for
his or her own reasons counsel may specifically instruct the IME doctor not to
prepare or forward a report.  This discretion is, obviously, lost in the case
of a jointly-appointed expert.

[9]            
Defence counsel also argues that the desirable goal of proportionality
is not assisted in this case by jointly appointing a psychiatrist.

[10]        
Neither counsel has suggested that Dr. O’Shaughnessy lacks the expertise
or objectivity to serve as a jointly appointed and instructed expert.

ANALYSIS

[11]        
Jointly appointed experts are not new to litigation in British
Columbia.  In the family law context section 15 of the Family Relations Act[1]
has, for over 30 years, provided for the appointment of experts to investigate
and prepare custody and access reports.  Realty appraisers are also often
jointly appointed and instructed in family proceedings.  It is not all that
unusual to encounter jointly-instructed experts in construction disputes.  But
the new Rules clearly have brought greater focus and emphasis to the
appointment of joint experts and invite the wider application of that process.

[12]        
Having said that, I agree with Mr. Nugent that this application does not
follow the correct procedure for such an appointment.  He is correct in his
analysis and that the only provision in the new Rules for the appointment of a
joint expert over the wishes of one or both of the parties is in Rule 5-3(1)(k)(i),
authorizing the presiding Judge or Master to order

that the expert evidence on any
one or more issues be given by one jointly-instructed expert

Rule 11-3, he correctly argues, only permits the court to
direct who that expert will be, or other terms ancillary to the appointment. 
Rule 11-3 assumes that either the parties have agreed to the concept of a joint
expert, or that the court has already ordered one in a CPC.  Neither of those
assumptions apply in this case.

[13]        
It is not for me to theorize the reasons behind Rule 11-3’s current
form, or why the only provision for the court, of its own volition, to appoint
a joint expert is found in the CPC rule.  Suffice it to say and conclude that
the Attorney General’s Rules Revision Committee’s purpose and the legislative intent
was to separate the aspects of the appointment accordingly and to leave the
court appointment process in the less formal CPC procedure.

[14]        
Even if the authority did lie in Rule 11-3, however, I agree further
with Mr. Nugent that it would not be an appropriate order in this case.  This
jurisdiction is blessed with a choice of numerous medical legal experts who
could function as a joint expert in this matter.  By no means is Dr.
O’Shaughnessy the only suitable choice as joint expert.  To appoint him,
however, is to deprive the defence of a significant or potentially significant
trial stratagem.  Wilson, C.J.S.C. in Milburn et al v. Phillips[2]
long ago described the purpose of an IME: “…to put the parties on a basis of
equality” or, as it is commonly offered in chambers, to level the playing
field.  The plaintiff has received treatment from at least two psychiatrists
and has seen a neuropsychologist (par. 3, above).  The former were, to be sure,
treating physicians, but it is not clear whether the latter was for treatment
or for medical-legal consultation.  Given these facts, the defence should not
be deprived of unilateral access to the one psychiatric expert that it chose
and notified some 15 months before this application.

[15]        
The accompanying argument also has merit: should Dr. O’Shaughnessy’s
conclusions not assist the defence, counsel can instruct him to not prepare a
report.  In such an instance Dr. O’Shaughnessy’s objective observations, test
results, or the like may well be discoverable[3]
but he would not be obliged to give or disclose his opinion to the plaintiff. 
This is an important tool in the defence toolkit and should not be casually
ignored.

[16]        
Finally, while proportionality is a laudable goal and should factor into
all decisions under the Rules, in this case I doubt its applicability.  With
five medical reports (privileged to date, recall) with the plaintiff, it seems
unlikely that proportionality will be served by directing that a sixth, that of
Dr. O’Shaughnessy, be a joint report.

[17]        
For these reasons the application is dismissed.

 “Master
D. Baker”