IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20110929

Docket: M054220

Registry: Vancouver

Between:

Lisa Marie De Sousa

Plaintiff

And:

Denis Bradaric and James S. Borthwick

Defendants

Before: The Honourable Mr. Justice Nathan
Smith

Oral Reasons for Judgment

In Chambers

[1]          
The defendants
appeal from a decision of a master denying their application for a second
medical examination by a psychiatrist. The plaintiff alleges a variety of
injuries arising out of a motor vehicle accident, including brain damage and/or
psychological injuries.

[2]          
At the request of
defence counsel, the plaintiff was examined by a psychiatrist, Dr. Davis, in
October of 2007. In his report dated November 2nd, 2007, Dr. Davis stated the
opinion, and I quote:

While
Ms. De Sousa sustained soft tissue injuries in her MVA in October 2003, there
was no suggestion of a closed head injury, termed in some circles as a
traumatic brain injury. She did not suffer a post-traumatic stress disorder. There
was no suggestion of a major depressive disorder or generalized anxiety state,
and there was certainly no cognitive deficit based on her daily activities of
living.

In
essence Dr. Davis gave the opinion that there was no psychological condition or
brain damage.

[3]          
Subsequent to Dr.
Davis’s examination and report, the plaintiff’s condition worsened to the point
that she was diagnosed as suffering from paranoid schizophrenia. The first
signs of that condition, actually, came with the hospital admission about two
months before Dr. Davis’s examination, but at the time of his examination and
report, he did not have those records. Although some suggestion was made to the
contrary, I think it is fair to say that there would have been no reason for
Dr. Davis to suspect that was a potential issue at the time of his initial
report.

[4]          
However, Dr. Davis
produced subsequent reports, including one dated June 9th, 2009. By that
point Dr. Davis had received other medical information, including a report from
the plaintiff’s treating psychiatrist that referred to the diagnosis of
paranoid schizophrenia. Dr. Davis in his June 2009 report stated there had been
no signs of that condition or any psychotic illness when he examined the
plaintiff in 2007. However, he disputed the treating psychiatrist’s suggestion
that this condition could be related to the motor vehicle accident and
specifically stated that his initial opinion remained unchanged. He did not
suggest that there was any need for him at that point to further examine the
plaintiff or to further consider this new diagnosis that had been brought to
his attention.

[5]          
The application of
the defendants for a second examination came before the master on July 21st,
2011. The defendants at that point were seeking a further examination not by
Dr. Davis but by another psychiatrist, Dr. Vallance. The master was told that
efforts of counsel to contact Dr. Davis had not been successful and that he was
apparently no longer practising. The master had before him a lengthy report of
Dr. Vallance dated December 16th, 2010, based on his review of the records. I
will refer to that report in a moment.

[6]          
The master
concluded that a further examination was not necessary. At paragraph 11 of the
master’s decision, he states:

What
is really important, however, is that Dr. Davis on several subsequent occasions
has reviewed the history of the matter with updated or further delivered
reports and records but has stood by his opinion quite, in my words, rigidly
and has categorically rejected any diagnosis of a psychotic condition.

[7]          
I do not think in
those comments that the master was overlooking the fact that the condition had
changed or that the condition had worsened since Dr. Davis’s examination. I
take that more as a comment on the fact Dr. Davis did not find it necessary to
re-examine the plaintiff at the time in order to be certain of the validity of
his opinion.

[8]          
In any event, the
master said at paragraph 13:

I
am not satisfied at all that in these circumstances, with these facts and
history, that a second IME is justified. It is easily as consistent in my mind that
the defence now disagrees or is concerned about issues with Dr. Davis’ position
and report. It is easily consistent, in my view, that the application aims to
mediate or improve upon Dr. Davis’ opinions.

[9]          
At the outset of
this hearing, counsel for the defendants sought to introduce new evidence which
I decided to allow. This new evidence consists of a medical report that defence
counsel received subsequent to the master’s decision stating that Dr. Davis has
a terminal illness and will not be able to give evidence at trial or
participate in any way in this proceeding. Therefore I know, as the master
apparently did not, that the defendants’ need for another psychiatrist was not
simply a matter of Dr. Davis being unable to conduct a second examination or of
counsel seeking a stronger or different opinion. The situation is that Dr.
Davis’s reports will be prima facie inadmissible at trial because he will not
be available for cross-examination, and although the trial judge will have
discretion to admit the reports, they may be entitled to very little weight.

[10]       
So the defence
clearly needs evidence of a psychiatrist who can be cross-examined. However,
that is not necessarily the end of the matter.

[11]       
This is an appeal
from a master, and the case law makes it clear that, depending on the nature of
the appeal, the standard of review in such an appeal may be that of correctness
or may be a complete re-hearing. I do not need to deal with those sorts of
issues on this application because, having allowed new evidence, the matter by
definition becomes a re-hearing.

[12]       
I turn then to the
circumstances under which a second medical examination may be ordered. There is
an oft-cited list of factors that was set out in Trahan v. West Coast
Amusements Ltd., 2000 BCSC 691 at paras. 48 and 50. These considerations were
paraphrased in Reischer v. Love, 2005 BCSC 580 at para. 14:

·        
The discretion must be exercised judicially on the basis of the
evidence produced;

·        
A second examination may be appropriate where there is some
question which could not have been dealt with on the first examination;

·        
A second examination is not allowed just because the magnitude of
the loss is greater than what was previously known;

·        
Passage of time alone is not a sufficient reason to order a
second examination;

·        
Where diagnosis of an infirmity is difficult and existing
assessments are aged, a court may order a second examination;

·        
Differences of opinions between medical professionals is not
sufficient reason to order a second examination where the first examiner could
have discovered the issue on the first examination.

[13]       
The major test,
however, and at the heart of all of these considerations as stated by the court
of appeal in Wildemann v. Webster, (1990), 50 B.C.L.R. (2d) 244, [1991]
1 W.W.R. 276 (C.A.), is that the medical examination is granted in order to put
the parties on the basis of equality at trial.

[14]       
Clearly the
plaintiff’s paranoid schizophrenia and its cause will be a major issue at trial
and will, I expect, form a major part of the damages that the plaintiff claims.
The parties must be placed on an equal footing to deal with that issue at trial.
However, the question is whether the evidence establishes that a further
examination will be necessary for that purpose.

[15]       
The master found
that it was not based largely on the fact that Dr. Davis, when told of that
diagnosis, indicated his opinion had not changed. As I said, I do not think the
master overlooked the fact that Dr. Davis, in stating that he had found no such
symptoms, was referring to an examination about two years earlier. He noted
that Dr. Davis said his opinion was not changed.

[16]       
The question that
arises on the new evidence, given the unavailability of Dr. Davis for
trial, is whether the defendant needs a new psychiatric examination to be
placed on that all important equal footing. For that purpose I turn to the
report of Dr. Vallance that was before the master. This is of course a report
that the defendant has, can rely upon at trial, and presumably Dr. Vallance
will be available to be cross-examined on it.

[17]       
Dr. Vallance
prefaces his report by stating:

I
have not personally examined Ms. De Sousa. Consequently such opinions as I
offer in this report are offered only on the understanding that such opinions
are significantly limited in the weight that can be given to them absent such
an examination.

As a
general statement, that is undoubtedly true. However, it must be reviewed in
the context of this case and the issues that will be before the court on which
medical opinion evidence will be necessary.

[18]       
Dr. Vallance
states that, based on his review of the records, there is no doubt about the
fact that the plaintiff now suffers from paranoid schizophrenia. So he does not
suggest that he needs to conduct an independent medical examination to confirm
or exclude that diagnosis.

[19]       
The real issue in
this case is whether that condition was caused or contributed to by the
accident. On that point Dr. Vallance gives a firm opinion. He states:

I
believe that if her physical condition and such anxiety as she had arising from
the traumata that she experienced had been significant stressors timing the
onset of that first episode, then her psychotic illness would have developed
sooner rather than later. I believe that her psychosis began out of the blue,
as it usually does, and at an age that is usual for the appearance of a first
episode.

He then
says:

Such
diagnoses as paranoid schizophrenia often reveal themselves slowly over time,
and therefore, based on the longitudinal history rather than cross-sectional
examination, earlier episodes are often diagnosed as other conditions until the
full picture is revealed.

[20]       
Thus on the
crucial causation issue, Dr. Vallance’s own report does not support the
suggestion that an independent medical examination is needed to place the
parties on an equal footing. Indeed he specifically questions the usefulness of
a single medical examination and stresses the need to review the entire
history, as he has already done, based on the records.

[21]       
There is also
evidence before me from the plaintiff’s family physician that in light of the
plaintiff’s present psychiatric condition, a further medical examination at
this time will actually be harmful to her health. That prejudice to the
plaintiff must, in my view, be considered, although if I thought that a further
psychiatric examination was necessary to put the parties on an equal footing, I
would have said that means would need to be devised to manage that risk,
perhaps with the assistance of the treating psychiatrist.

[22]       
However, that is
not the case here. It appears to me from the evidence of Dr. Vallance that
the defendants are in as good a position as they are likely to be to advance
their position that this severe psychiatric condition is causally unrelated to
the motor vehicle accident. I am not satisfied that a further psychiatric
examination will add anything to the matter or will be of any further
assistance for the court.

[23]       
Therefore the
appeal from the decision of the master must be dismissed.

“N. Smith J.”