IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140623

Docket: S114387

Registry:
Vancouver

Between:

Sienna Staaf

Plaintiff

And

Insurance
Corporation of British Columbia
and John Doe

Defendants

Before:
The Honourable Mr. Justice Burnyeat

Ruling on Admissibility
of a Supplementary Report

[1]            
At the request of the Defendants, Synaptic Analysis Consulting Group
(Darrin Richards) prepared a February 3, 2014 opinion relating to an
accident reconstruction of the collision alleged by Ms. Staaf and, in
particular, to analyze the speed of the vehicle and whether another vehicle
could have impacted her vehicle in the area of the markings around the gas
cap.  In his opinion, Mr. Richards came to the following conclusions:

(a)        The 1994 Pontiac Firebird [of Ms. Staaf]
rotated in a counterclockwise yaw before sustaining a frontal impact with the
barrier on the north side of the Georgia Viaduct.

(b)        The Pontiac continued to rotate counterclockwise
after this initial impact and sustained a subsequent impact to its right rear
corner.  This subsequent impact also occurred with the barrier on the north
side of the Georgia Viaduct.

(c)        The initial speed of Ms. Staaf s Pontiac
Firebird was likely 66‑72 km/h.

(d)        The scuff and dent to
the left quarter panel of the Pontiac Firebird were likely the result of a
contact with a protruding surface.  The damage is not consistent with having
resulted from contact with the concrete barriers on the Georgia Viaduct.  If
the scuff and dent were the result of vehicle contact, the direction of motion
of the vehicles would have to be parallel or nearly parallel.  It is unclear
whether the scuffs and dent are related to the subject incident.

[2]            
A December 20, 2013 expert opinion prepared by Forensic Dynamics
Inc. (Trevor S. Dinn) was received by counsel for Ms. Staaf, was forwarded
to counsel for the Defendants, and was then forwarded by him to
Mr. Richards for his review.  Mr. Richards prepared a March 14,
2014 opinion which he forwarded to counsel for the Defendants.  Counsel for
Ms. Staaf objected to the March 14, 2014 opinion of Mr. Richards
being entered into evidence on the basis of relevancy and necessity and because
the opinion not being a “responding report” within Rule 11‑6(4). 
Those objections were ultimately withdrawn.

[3]            
During the course of the Trial, I raised the issue of the admissibility
of the March 14, 2014 opinion and referred counsel to the decision in Amini
v. Khania, 2014 BCSC 697.

[4]            
The March 14, 2014 opinion of Mr. Richards sets out his
qualifications, the necessary certification, and his “Analysis”, but does not
set out “a list of every document, if any, relied on by the expert informing
the opinion”, as is required by Rule 11‑6(1)(f)(iii).

[5]            
What is stated in the March 14, 2014 opinion is that:

… I have reviewed the
December 20, 2013 report of Trevor Dinn … and have undertaken some
additional research and analysis pertaining to bumper heights and the location
of horizontal scuffmarks on the left quarter panel of the 1994 Pontiac
Firebird.

[6]            
While it is clear that reference was made to the December 20, 2013
report of Trevor Dinn, Mr. Richards does not list the documents relied
upon by him.  However Mr. Richards does state that he reviewed: “…
research by the Insurance Institute for Highway Safety (IIHS) …”.  However,
he does not set out all of the research referred to and does not list all of
the research referred, although he does set out the following under the heading
“References”:

Nolan (2009) IIHS Submission to
Docket No. NHTSA-2009-0047, 49 CFR Part 581 Bumper Standard,
Petition for Rulemaking.

[7]            
The burden is on the Defendants to establish that a supplementary
opinion should be admitted into evidence and the burden in that regard is a
relatively heavy burden: McKay v. Passmore, [2005] B.C.J. No. 1232
(S.C.) at para. 26.

[8]            
I am satisfied that the March 14, 2014 opinion of Mr. Richards
should be admitted into evidence.  First, the objection initially made by the
Plaintiff has been withdrawn.  Second, I am satisfied that, while there is no
specific list setting out “every document relied on”, there is a reference to
the IIHS Submissions to the United States National Highway Traffic Safety
Administration.

[9]            
While I am satisfied that the March 14, 2014 opinion of
Mr. Richards does not comply with Rule 11‑6(1)(f)(iii), I am
satisfied that I should exercise the discretion available to me under
Rule 11‑7(1) to allow the second opinion of Mr. Richards to be
admitted into evidence.  Mr. Richards was presented for cross-examination so
that it was possible for counsel for the Plaintiff to fully explore the
question of what documents and research had been referred to.  I can find no
inconvenience or disadvantage to the Plaintiff if the opinion is entered into
evidence.  In fact, it appears that the opinion of Mr. Richards may be of
assistance to the Plaintiff.

[10]        
Accordingly, I exercise the discretion available to me under
Rule 11‑7(1) so that the March 14, 2014 opinion of
Mr. Richards will be admitted into evidence.

__________ “Burnyeat
J.”__________
Burnyeat J.