IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100331

Docket: S083116

Registry:
Vancouver

Between:

James Leo Agesen

Plaintiff

And

Insurance
Corporation of British Columbia,
John Doe and/or Jane Doe

Defendants

Before:
The Honourable Madam Justice Morrison

Reasons for Judgment

Authorities Considered:

Rule 30 of the Supreme Court
Rules

Wildemann v. Webster
(1990), 50 B.C.L.R. (2d) 244 (C.A.)

McDoneIl v. Kumar (27
January 27 1997), Vancouver B944396 (S.C.)

Hothi v. Grewal
(1993), 45 B.C.L.R. (3d) 394 (S.C.)

West v. Cotton,
[1992] B.C.J. No. 139 (S.C.)

Kelley v. KeIley
(1995), 20 B.C.L.R. (3d) 232 (S.C.)

Wassell (Guardian ad item
of) v. Pile (1994), 93 B.C.L.R. (2d) 195 (S.C.)

Kroll v. Eli Lilly Canada
Inc. (1995), 5 B.C.L.R. (3d) 7 (S.C.)

Stainer v. ICBC, 2001
BCCA 133

B. (B.P.) v.
B. (M.M.), 2009 BCCA 365

Sauer v. Scales, 2009
BCSC 1311

Astels v. The Canada Life
Assurance Co., 2006 BCCA 110

S.P.M. v. R.J.M., 2008 BCCA
510

Payne v. Montague,
2009 BCCA 351

White v. Gait, 2003
BCSC 2023

Benner v. Vancouver
(City), 2007 BCSC 1998

Nguyen v. DaimlerChrysler
Financial Services Canada Inc., 2008 BCSC 1857

Michael v. Todd, 2009
BCSC 1681

Critchley v. McDiarmid, 2009 BCSC 134

[1]          
This is an appeal by the plaintiff of an order of the Master on March
23, 2010.  The Master ordered that the plaintiff, James Leo Agesen, submit to a
medical examination by Dr. J.F. Schweigel, an orthopaedic surgeon, on
March 30, 2010, at 2:45 p.m.

[2]          
The application before the Master had been made by the defendants.  The
order had also stipulated that the plaintiff attend for another medical
examination before Dr. Stephen Wiseman, a psychiatrist, on March 24, 2010 at
5:00 p.m.

[3]          
Other paragraphs in the notice of motion of the defendants were
adjourned generally or dealt with as follows:  there was an order that Dr. Jean
Ferri, a psychologist, deliver certain records within 14 days, and also that
Dr. K. Burns, GP, deliver certain pre-accident clinical records and updated
clinical records as well; other records from the Ministry of Health Services
and the College of Pharmacists were ordered produced, with copies to be
provided by the defendants to the solicitor for the plaintiff.  The applicant
defendant was to pay the reasonable fees for the Record Holders for the production
and delivery of certain records, and the applicant was to enter the order
promptly and deliver copies to the Record Holders as well as to the solicitor
for the plaintiff.  Fixed costs in the amount of $800 were to be payable
forthwith to the plaintiff, in any event of the cause.

[4]          
The plaintiff did attend for the independent medical examination by Dr.
Wiseman on March 24, on the understanding that counsel for the plaintiff would
be at liberty to make submissions with regard to admissibility on such evidence.

[5]          
Immediately following the order of the Master, counsel for the plaintiff
brought his appeal on the order on the following grounds:

(a)        the Master erred in fact and/or law for the order
to be made;

b)         the
Master failed to take into consideration that in making the order for the
Plaintiff to attend the medical examinations within 60 days of the trial date,
the Plaintiff will be prejudiced in the conduct of his action and compromised
in the presentation of his case;

c)         the
Plaintiff will be unable to rebut or respond to the Defendants experts prior to
the trial date;

d)         the Master failed in the proper
exercise of her discretion in the making of the order.

[6]          
This appeal deals only with the order for a medical examination to be
performed by Dr. Schweigel.

Background

[7]          
The plaintiff is 46 years of age.  He was injured in two separate motor
vehicle accidents.  The first occurred May 24, 2005 when he was a passenger in
a work vehicle driven by a fellow worker.  The second accident occurred August
4, 2007, at a time when the plaintiff was still off work because of the
injuries that he suffered in the first accident.

[8]          
The writ for the first accident was issued October 6, 2006; the writ for
the second was begun May 2, 2008.  The two accidents were joined for trial by
order filed September 2, 2008.  In-house counsel for ICBC was defence counsel
on both trials until February 15, 2010, when there was a change in counsel. 
Lyle Harris is now defence counsel with regard to the first accident and Diane
Weinrath is defence counsel for the second accident.

[9]          
Defence counsel contends that the reason for splitting the defence is
related to the significant monetary suggestion made by counsel for the
plaintiff and the possibility that the in-house counsel would be in conflict if
she continued to act for both sets of defendants in the two actions.

[10]       
Examinations for discovery of the plaintiff were conducted by defence
counsel on May 19, 2009, August 4, 2009 and November 11, 2009, each for
one-half day to accommodate the plaintiff’s inability to sit for a longer time.

[11]       
On September 12, 2009, the plaintiff served the report of Dr. Joaquin,
psychiatrist, and on February 26, 2010, the report of Dr. Miller,
psychologist.  In January and February 2010, the plaintiff also served a future
care report by an occupational therapist, a physical capacity report by an
occupational therapist and a vocational report.

[12]       
The report of Dr. Burns, the family physician for the plaintiff, dated
February 11, 2010 was served on the defendants on February 25, 2010.  The
defendants served their expert report of Dr. Ian Turnbull, a neurosurgeon,
dated February 3, 2010, within the 60 day time limit.

[13]       
A ten day jury trial is set to commence April 26, 2010.

[14]       
Counsel for the defendants had originally set March 17, 2010 as a date
for the plaintiff to be seen by Dr. Schweigel.  However, counsel for the
plaintiff was ultimately not agreeable to his client undergoing the
examination.  His instructions to his paralegal on March 15, 2010 to advise
defence counsel of the refusal did not get communicated to defence counsel, who
were thus unable to cancel the appointment and are now faced with a
cancellation fee from Dr. Schweigel.

Position of the Defence

[15]       
The independent medical examination (“IME”) of Dr. Schweigel is
necessary evidence, according to the defence, so there can be realistic
information to attempt a settlement, or ultimately, for the court to assess the
issue of indivisible injury, along with the other issues.  Counsel for the
defence argues that the defendant has not had any physical medical examinations
under Rule 30 in this matter and is entitled to the examination by Dr. Schweigel,
an orthopaedic surgeon.

[16]       
Rule 30 is relied upon by the defence.  Rule 30 states:

(1)        Where the physical or mental condition of a person
is in issue in a proceeding, the court may order that the person submit to
examination by a medical practitioner or other qualified person, …

(2)        The court may order a
further examination under this rule.

[17]       
Counsel for the defence argues it is not possible for the defence to
assess damages relating to the second accident and the risk on the issue of
indivisible injury without evidence.  Even settlement cannot be attempted
without clear evidence on whether the injuries should be considered divisible
or indivisible for the second accident, particularly with a view to the three
areas of injury:  (1) chronic regional pain syndrome and disuse of his
left arm and hand; (2) lower back; and (3) psychological condition
which includes anxiety and depression.

[18]       
The defence contends that neither party has addressed the issue of
indivisible injury in their medical evidence from their experts.  This leads to
the concern that the plaintiff will attempt to recover all of the plaintiff’s
damages from the defendant in the second accident, if there is an unfavourable
liability decision with regard to the first accident.

[19]       
In citing Wildemann v. Webster, counsel for the defence argues
that Rule 30 allows for the parties to be on an equal footing.  That the Rules
are designed to make sure that proceedings do proceed on the merits, that full
disclosure is encouraged, and both parties have a fair opportunity to present
their case.

[20]       
Further, citing McDonnell v. Kumar, that the defence should not
be restricted in their defence, or preparation for trial, “as long as there is
some reasonable evidence which, if proven and accepted by the court, might play
a part in its outcome.” (Paragraph 20).

[21]       
Counsel points to the difficulty of apportioning the symptoms and
injuries between the two accidents, and says the defendants should not be
expected to go to trial “with no medical evidence”.

[22]       
The questions that must be addressed, according to the defence are as
follows:  (1) Is any part of the plaintiff’s present physical condition
related to the second accident?  (2) Is any part of the plaintiff’s
present disability related to the second accident?

[23]       
Although the defendants rely on the report of Dr. Turnbull, the defence
contends they have no medical examinations specifically with regard to that
second accident and the questions posed above.

[24]       
In the hearing before the Master, the decision of Mr. Justice Burnyeat
in Critchley v. McDiarmid confirmed that the court must balance any
prejudice between the parties.  In that case, Burnyeat J. was not satisfied
that the Master had considered whether or not the proposed IME was required to
put the defendant on an equal footing with the plaintiff.  I have made the same
determination with regard to the Master’s decision in this case.  Both in Critchley
and in this case, the Master did not appear to make any finding or appear to
give full consideration to that question.

[25]       
Burnyeat J., in Critchley, found that in order to “put both
parties on an equal footing requires the independent medical examination which
is requested.” (Paragraph 28).  He took into account the consideration of
fairness between the parties and a balancing of any potential prejudice to the
defendant should an IME not be ordered.

[26]       
In Critchley, the Master had concluded that there was no evidence
to find that an adjournment might occur as a result of the IME being ordered,
or, that if that were to occur, that it would amount to a prejudice that would
outweigh the prejudice to the defendant in not being able to obtain material
evidence that went to the heart of the plaintiff’s claim.  He ordered the IME
and in the re-hearing, Burnyeat J. upheld that order.

[27]       
The defence in this case rejects the suggestion by counsel for the
plaintiff that the plaintiff will be prejudiced in any way by having to go
through the examination by Dr. Schweigel.

[28]       
According to the defence, the prejudice to the defence is overwhelming
if the order for the IME with Dr. Schweigel is not allowed.  There is also
the possibility that the plaintiff may not be prejudiced by new opinion
evidence, or, if there is prejudice, then it would be the defendant who would
take the risk that that evidence might not be admitted into evidence as being
out of time.

Position of the Plaintiff

[29]       
Counsel for the plaintiff says this is, at best, a new approach by new
counsel, an attempt to pile on the plaintiff late in the day, and that such a
late application may well force an adjournment on the plaintiff.

[30]       
According to the plaintiff, the defendants ought to have known the
significance of the plaintiff’s claim, the extent of the claim, not only as a
result of their own investigations, including the extent of document
disclosure, but also from the examinations for discovery of the plaintiff that
were conducted in May, August and November, 2009.  The plaintiff has not been back
to work since the first accident.

[31]       
Further, the statement of claim arising out of the second motor vehicle
accident alleges that the plaintiff suffered aggravations to the enumerated injuries
that he sustained in the first motor vehicle accident, plus a new injury to his
lower back.  It is acknowledged by both parties that the plaintiff was
seriously disabled in the first accident, and was still off work at the time of
the second motor vehicle accident.  He remains off work to this day.

[32]       
The plaintiff argues that indivisible injury is not a novel argument,
and should have been considered by the defence well in advance of this date. 
Both counsel would or should have been aware of the law with regard to and the
issue of indivisible injury.  It should not be used as an excuse now for a late
IME.

[33]       
Counsel submits there is significant prejudice to the plaintiff in this
instance.  He refers to the narrative medical report prepared by the
plaintiff’s family doctor, Dr. Kenneth Burns, dated February 11, 2010.  In
that narrative report, Dr. Burns on several occasions refers to the
increased stress and anxiety suffered by the plaintiff following his
examination for discovery in August 2009, and other occurrences, associated
with the stress of the upcoming court case.  Dr. Burns’ report refers to
the plaintiff experiencing significant anxiety and depressive symptoms
following the November examination for discovery, increased panic attacks, and
waking up screaming from nightmares.

[34]       
In a clinical note dated February 22, 2010, a Dr. Miller noted that
the plaintiff reported approximately ten panic attacks in the preceding week,
due to stress associated with his anxiety with regard to the upcoming court
case.  The plaintiff is someone, according to his family doctor, who, in addition
to suffering from his physical and pain related symptoms, is suffering frequent
panic attacks, depressive episodes including sadness, occasional crying
episodes, discouragement about the future, sleeping problems, and other stress
related symptoms.

[35]       
Counsel for the plaintiff points out that the plaintiff is having to
prepare for a ten day jury trial involving two accidents where liability is
being contested.  In fairness, the plaintiff should be as capable as possible
to prepare himself for this long awaited trial.  There is also the concern that
an IME report at this late stage could lead to the plaintiff requiring an
adjournment to respond appropriately.

[36]       
It is clear from the transcripts that the examinations for discovery
were conducted in reference to and in relation to both actions.  A pre-trial
conference was held February 3, 2010 that canvassed whether there were any
outstanding issues at that time.

Conclusion

[37]       
The appeal should be allowed from that portion of the Master’s order
that instructs the plaintiff to attend and submit to an independent medical
examination before Dr. J.F. Schweigel.

[38]       
In Benner v. Vancouver (City), Mr. Justice N. Smith refused an
application for a medical examination that came three weeks before trial.  The
application was three weeks before trial and the examination itself would have
been less than two weeks before trial.  In paragraph 19 of his judgment, Smith
J. confirmed that the purpose of Rule 30 was “to place the parties on an equal
footing in their ability to obtain medical evidence in a case where injuries
are alleged.”  He also referred to Rule 40A which requires service of expert
opinions 60 days before trial, where a report delivered less than 60 days
before trial is inadmissible unless the court were to order otherwise.  In that
case, the court found that the plaintiff’s physical condition was clearly put
in issue by the pleadings.  The defendants had full advantage and protection of
routine production of medical records.  I find that decision is applicable to
this appeal.

[39]       
In dismissing the application for a medical examination at that late
stage, at paragraph 35, Smith J. stated, “… the Rules of Court are
intended to level the playing field as between the plaintiff and the defendant,
a defendant who takes no timely steps to exercise its rights under the rules
does so at its peril.”

[40]       
Defence counsel in this case before me has a comprehensive report from
their expert, Dr. Turnbull, dated February 3, 2010.  His report references “MVA
Date – May 24, 2005”.  But the report itself indicates that he interviewed
and examined the plaintiff on February 2, 2010.  Also, Dr. Turnbull read the
documents which were sent to him, and these documents were listed as Appendix A
to his seven page report.  Appendix A is a list of many clinical records, over
half of which referred to dates after the date of the second motor vehicle
accident, August 4, 2007.  Those documents included the following:

[41]       
Appendix A contained a number of other documents and clinical records
pertaining to the period after the first accident but before the second
accident.  The dates listed above are pertinent to the period following the second
accident in August 2007.

[42]       
Dr. Turnbull’s report deals with specialists seen by the plaintiff
following the accident in August 2007, although there is no direct reference to
the second accident in Dr. Turnbull’s report.  But there is nothing to suggest
that he was unaware of the subsequent accident, given all of the records that
he read.  Whether Dr. Turnbull was asked to give an opinion on injuries
resulting from the second accident is not known.  On page 5 of his report, Dr.
Turnbull advises that when he asked the plaintiff to tell him the problems that
he now has which he feels were caused by the accident, the plaintiff mentions
pain in the left side of his neck running into his left arm and into his low
back, “which tightens up”.  The low back pain was apparently not evident until
the second accident.

[43]       
The report of Dr. Burns clearly sets out that there was a second
accident; the plaintiff went to see Dr. Burns five days after that accident. 
Dr. Burns wrote, “This had aggravated his neck and shoulder pain.”  He also
reports that when he saw the plaintiff in January, February and March 2009, “He
was suffering with back pain…”.

[44]       
Given the dates and the number of times that Dr. Burns apparently saw
the plaintiff, and the fact that his clinical records up to February 16, 2009
were seen by Dr. Turnbull, as well as defence counsel, it is late in the day
for the defendants to now seek an IME to rebut opinions set out in the
plaintiff’s report, particularly the report of Dr. Burns.  Dr. Burns’ report
concludes, “The second accident aggravated the present symptoms.”  He also
stated that he believed that the plaintiff would have permanent symptoms from
the injuries “suffered in the MVAs.”  I am unable to agree with the defence
that they are now entitled to some rebuttal evidence of this report.  This is
evidence that could have been anticipated, particularly given the clinical
records and other material available to the defence.

[45]       
In my view, it would be prejudicial to the plaintiff at this date to
order an IME four weeks before a ten day jury trial.  That the plaintiff has
serious injuries is not a surprise to the defence.  That his claim is
substantial should certainly not have been a surprise.  Any advantage to the
defence at this point in time would be outweighed by prejudice to the plaintiff,
not only because of his problems in dealing with examinations, depositions and
preparation for trial, but also because of the very real possibility that a
late medical opinion could well result in plaintiff’s counsel having to seek an
adjournment of this trial, in order to meet unexpected or opinion evidence that
may be prejudicial to the plaintiff.  In this case, the balancing of prejudice
must be in favour of the plaintiff, given the chronology of events.

[46]       
The matter of costs as ordered by the Master was addressed by counsel. 
I see no reason to interfere with that order.  That order was discretionary,
and I can see no error with regard to that portion of her order.

[47]       
The costs of this application are payable by the defendants to the
plaintiff forthwith.

“Morrison J.”