IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120517

Docket: 09 2911

Registry:
Victoria

Between:

Cherie Jean
Knowles

Plaintiff

And:

Peter Watters

Defendant

Before:
Master McCallum

Oral Reasons for Judgment

[1]            
THE COURT:  This is an application by the
defendant in this personal injury claim for an order that the plaintiff be
examined by an ear, nose, and throat specialist, Dr. Bell. That
examination, the defendant says, should be preceded by balance testing at a
unit of the Vancouver General Hospital, where they are currently equipped to do
the balance testing.

[2]            
There is no question that the plaintiff has
complained of balance issues as one of her symptoms. As counsel agree, she has
a wide spectrum of symptoms, including imbalance, dizziness, light-headedness
and so on, all of which are related one way or another, in my view, to the
balance question.

[3]            
The plaintiff has produced some expert reports
to date, although the time has not run yet for final production of reports. The
reports produced are from a neurologist, a psychologist, an otolaryngologist (Dr. Noel),
a general practitioner, and a physiotherapist. The defendant has a report from
Dr. Moll, who is a neurologist, and a psychiatrist. The significant issue
for today involves what Dr. Noel, on behalf of the plaintiff, did and what
Dr. Moll, on behalf of the defendant, did.

[4]            
Dr. Noel saw the plaintiff with respect to
the whole question of dizziness and the related symptoms. He says, on
page 8 of his report of November 10, 2009 [as read in]:

I, therefore, feel her symptoms
are probably multifactorial and not related to one issue. A mild traumatic
brain injury can have as a component a sense of imbalance and disequilibrium.
This has been implicated as a component relating to her system complex.
Oculovestibular mismatch is probably related to some impairment of balance
process in her brain level. Cervicogenic issues from soft tissue injuries play
a role as to functional anxiety overlay. Based on the history and the fact that
the testing is normal, I am not comfortable stating that this symptom is solely
a consequence of an end organ vestibulopathy, i.e. damage to the balance
portion of the inner ear. I have requested an ENG, i.e. a balance test, to
see if we can objectify the balance dysfunction more effectively.

[5]            
On March 5, 2010 Dr. Noel reported
that the plaintiff had completed the ENG. On the ENG, the only abnormality was
some down-beating nystagmus. This was persistent throughout the positional
testing. Dr. Noel reported that there were a variety of potential causes
for the down-beating vertical nystagmus: medication, (I am paraphrasing
here), and a consequence of trauma related to a traumatic brain injury. Interestingly,
50 percent of the patients who have this finding have no identifiable cause.

[6]            
That is the report that the defendant says he
ought to be able to respond to through the examination by Dr. Bell. The defendant
says that he has not had an opportunity to have the plaintiff examined by
specialists with similar experience and knowledge as Dr. Noel. The
defendant says that Dr. Bell should have the advantage of having the
balance testing done in advance and then do his examination of the plaintiff
and give his report.

[7]            
The plaintiff says that, evidence in response to
what Dr. Noel has to say, is already available to the defendant as a
result of the examination by Dr. Moll, who is a neurologist. Dr. Moll
saw the plaintiff after Dr. Noel’s report was produced, but he did not see
Dr. Noel’s report. He did not see the testing that Dr. Noel did, the
ENG test, but he conducted his own examination and made a variety of findings.
In particular he dealt with what he called balance complaints. Dr. Moll
reported that his neurologic evaluation of the plaintiff showed no evidence of
any impairment in neurological functioning and said the plaintiff showed
excellent balance. He gave his own explanation for dizziness and what he called
postural instability. He said [as read in]:

There was nothing in my
evaluation to suggest she has sustained any injury to her peripheral balance
mechanisms, including the inner ear vestibular mechanisms.

Dr. Moll discussed past symptoms  and
discounted them. Dr. Moll reported that there was no brain injury. He gave
his opinion as to the cause of the plaintiff’s complaints, none of which are
related to an inner ear mechanism or brain injury. Dr. Moll also dealt with
the reports of others such as the physiotherapist who reported on certain
instabilities that the plaintiff had demonstrated.

[8]            
The defendant says that Dr. Moll’s report
is restricted to neurological functions, and is not a complete answer or a
complete response, if it were looked at in that way, to what Dr. Noel had
to say. The defendant says that can only be accomplished by an examination by
Dr. Bell.

[9]            
In this case the defendant has had the
opportunity the authorities require to essentially balance the playing field.
Counsel are agreed that the authorities I have been cited are to that effect.
The court’s job is to ensure that there is a so-called level playing field or
that the parties have the opportunity to deal with the case fairly on the
merits.

[10]        
The plaintiff here has, as is always the case,
the opportunity to visit various specialists and get various reports. The
defendant’s opportunity is limited to reports necessary to ensure that a fair
trial can be obtained on the merits. In this case it is too fine a distinction
to make to say that Dr. Moll, who made a comprehensive examination and
gave a comprehensive report on the plaintiff’s balance complaints, can be
distinguished from what Dr. Bell might or might not do as an
otolaryngologist. There is no evidence to say that Dr. Moll was unable to
make the report he did, that if he had had more information he might have made a
different report, or indeed that if he had seen Dr. Noel’s report that he
might have come to a different conclusion. None of that is the case. The
plaintiff has disclosed its reports to date. The defendant has had a fair
opportunity to respond to those reports. Dr. Moll’s report is indeed a
complete response to Dr. Noel’s report. The plaintiff’s own report from
Dr. Noel does not suggest that there is an underlying otolaryngological
cause to the plaintiff’s symptoms. He says that the ENG test was normal except
for one abnormality that he says is most likely due to other causes. Dr. Noel
says the symptoms were multifactorial, not related to one issue. That is at
odds with what Dr. Moll has to say, but that is what the jury will have to
decide when the case comes to trial.

[11]        
This is not a case where the defendant has made
out the burden on him to demonstrate that this application is necessary. The
application is dismissed. Costs should go as costs in the cause. There is no
reason to depart from the usual rule.

_________”W. McCallum”_______
Master W. McCallum