IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101001

Docket: M085322

Registry:
Vancouver

Between:

Helen Kim

Plaintiff

And

Meiyi Lin, Guo Xiong
Zhang and Xin Lin

Defendants

And

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Mr. Justice Voith

Reasons for Judgment

[1]          
The third party, the Insurance Corporation of British Columbia, applies
to have the plaintiff, Ms. Kim, attend at a medical examination before Dr. Richard
Kendall who is an orthopaedic surgeon.

Background

[2]          
The facts which underlie the application are straightforward and not in
dispute.

[3]          
This action arises out of a motor vehicle accident that occurred at the
intersection of Dunsmuir and Hornby Streets in Vancouver, British Columbia on
December 20, 2006 (the “Accident”). The third party has denied liability on
behalf of the defendant driver Lin. The defendants have not filed a statement
of defence.

[4]          
The plaintiff Ms. Kim alleges that she sustained various injuries
which have caused and continue to cause her pain, suffering, loss of enjoyment
of life, physical disability, loss of earnings, past and prospective, and
special damages. In her statement of claim, she alleges that she sustained
various injuries, including the following:

a.         headaches;

b.         injuries to the
shoulders, back and neck; and

c.         such further and
other conditions as may become apparent.

[5]          
Counsel for the third party conducted examinations for discovery of the plaintiff
on March 8, 2010 and on May 5, 2010. The plaintiff testified during these
discoveries that she sustained various injuries from the Accident, including
problems with her eyes, ringing in her ears, neck pain, problems with her
shoulders and shoulder blades, her upper back, her hip, her lower back,
bruising to her hips, leg, knee and ankle pain, as well as headaches,
dizziness, hair loss, weight problems and a variety of emotional problems,
including impaired memory and concentration, sleep, fatigue and decreased
energy levels.

[6]          
The plaintiff testified at the time of the examination for discovery
that her symptoms have not resolved and that she has ongoing symptomology,
including to her neck, back and shoulders. Indeed, she testified that her lower
and upper back have been gradually deteriorating since December 2009 and that
overall she struggles with various significant restrictions and limitations.

[7]          
The plaintiff has received and is believed to continue to be receiving
treatment for injuries allegedly sustained in the Accident, including
chiropractic care and massage therapy.

[8]          
The plaintiff was attending the Paralegal Program at Capilano College at
the time of the Accident. She alleges that she has been unable to complete the
program because of the injuries she sustained in the Accident.

[9]          
The plaintiff is employed as a paralegal assistant at a law firm. She
has missed much time from work and now works on a part-time basis. This is
again said to be as a result of the injuries she sustained in the Accident.

[10]       
The plaintiff has attended two medical examinations at the request of
the third party:

a)         on
May 19, 2010 before Dr. Bernard Tessler, a neurologist; and

b)         on
July 21, 2010 before Dr. Kevin Solomons, a psychiatrist.

[11]       
The trial of this matter is set for five days and is to commence on
February 21, 2011. The plaintiff has not yet provided the third party with any
of the medical reports upon which she intends to rely.

The Position of the Parties

[12]       
The plaintiff’s primary position is that the third party has already
secured two expert reports, from Dr. Charles Oh, the plaintiff’s family
doctor, and from Dr. Tessler, which deal with her soft tissue injuries and
that it would not be appropriate for the court to order that a third
examination, which would again canvass similar issues, take place. The report
from Dr. Kendall, it is said, would do no more than bolster these earlier
reports. The plaintiff also asserts that the object of “proportionality”, now
captured in R. 1-3(2) of the Rules of Court, militates against the order
which the third party seeks:

(2) Securing the
just, speedy and inexpensive determination of a proceeding on its merits
includes, so far as is practicable, conducting the proceeding in ways that are
proportionate to

 (a)        the amount involved in the
proceeding,

 (b)        the importance of the
issues in dispute, and

 (c)        the
complexity of the proceeding.

[13]       
The third party argues that the disparate nature of the plaintiff’s
various injuries, which are said to be serious and ongoing, supports the relief
it seeks.

Analysis

[14]       
In the recent case of Hamilton v. Pavlova, 2010 BCSC 493
(Chambers), Mr. Justice Bracken succinctly summarized the various factors
which were relevant to a court exercising its discretion, conferred under the
former R. 30(1), to order an examination by a medical practitioner or other
qualified person, where the physical or mental condition of a person is in
issue. It was not suggested before me that different principles pertain to the
present R. 7-6(1). Furthermore, the two Rules are expressed in very similar
terms. Specifically, Bracken J. said:

[9]        The plaintiff submits that Dr. Moll’s
conclusions, in that segment of his report and elsewhere in his summary, are
clearly that the mild depression, anxiety, and mood disorder are reversible,
and not related to a brain injury. The plaintiff takes the position that the
defendants have chosen their specialist and already have a report from an
independent medical examiner that is on the very issue that the defendants want
another opinion from Dr. O’Shaughnessy.

[10]      Rule 30(1) provides discretion to the court to
order an independent medical examination, and under Rule 30(2), more than one
examination may be ordered. Counsel, in their helpful submissions, have
thoroughly canvassed the relative authorities on this point. From those
authorities, certain principles emerge. The case law is against a background of
the rules of court, and in particular, the principle that the rules are
designed to secure a just determination of every proceeding on the merits and
to ensure full disclosure, so the rules should be given a fair and liberal
interpretation to meet those objectives: Wildemann v. Webster [(1990),
(1991) B.C.L.R. (2d) 244 at 246, [1991] 1.W.W.R. 276].

[11]      Rule 30(2) is a discretionary rule, and the
discretion must be exercised judicially. An independent examination is granted
to ensure a “reasonable equality between the parties in the preparation of a
case for trial”:

Wildemann v. Webster [at 250] from the separate
concurring reasons of Chief Justice McEachern.

[12]      Reasonable equality does not mean that the
defendant should be able to match expert for expert or report for report: McKay
v. Passmore, 2005 BCSC 570 at para. 17, and Christopherson v. Krahn,
2002 BCSC 1356 at para. 9.

[13]      A second exam will not be allowed for the purpose
of attempting to bolster an earlier opinion of another expert. That is, there
must be some question or matter that could not have been dealt with at the
earlier examination: Trahan v. West Coast Amusements Ltd., 2000 BCSC 691
at para. 48, and Norsworthy v. Greene, 2009 BCSC 173 at para. 18.

[14]      There is a higher standard required where the
defendant seeks a second or subsequent medical exam of the plaintiff: McKay
v. Passmore, supra, at para. 17 and para. 29.

[15]      The application must be timely. That is, the
proposed examination should be complete and a report available in sufficient
time to comply with the rules of admissibility and to allow enough time for the
plaintiff to assess and respond if necessary: Vermeulen-Miller v. Sanders,
2007 BCSC 1258 at paras. 47-48. relying in part on Goss v. Harder,
2001 BCSC 1823.

[16]      Finally, subsequent
independent medical examinations should be reserved for cases where there are
some exceptional circumstances: Wildemann v. Webster [at 246].

[15]       
In the present case, the assessment of what medical examinations of the plaintiff
may be required to "ensure reasonable equality between the parties"
is rendered somewhat difficult because the plaintiff has not yet delivered any
of the medical reports upon which she intends to rely. What is clear, however,
is that:

a)         the
condition and status of many of the plaintiff’s injuries are said to have
deteriorated over time;

b)         the
plaintiff purports to be suffering from a wide range of distinct injuries and
symptoms; and

c)         the
plaintiff asserts that the discomfort and pain she is experiencing from many of
these injuries or symptoms is very extreme.

[16]       
Each of these various factors is directly relevant to the merits of the
present application and to the positions of the parties. The significant
deterioration in the condition of the plaintiff’s various injuries is directly
relevant to the report of Dr. Oh and the assertion that that report serves
as an impediment to a further medical examination of Ms. Kim. Dr. Oh
last saw Ms. Kim on September 14, 2007 and his report is dated September
26, 2007. That report chronicles Ms. Kim’s visits in the months following
the Accident and concludes at page 4 with both the opinion that Ms. Kim
suffered various soft tissue injuries and with an optimistic prognosis for
"full and eventual recovery".

[17]       
Under the present circumstances, with Ms. Kim now asserting a
marked and significant worsening in her condition, I would not consider that
the report of Dr. Oh creates an obstacle to a further medical examination
of Ms. Kim.

[18]       
The fact that the plaintiff purports to suffer from a wide range of
injuries is directly relevant to the reports which the third party has already
obtained and to the further report of Dr. Kendall that it seeks to secure.

[19]       
Dr. Solomons is a psychiatrist who was retained to address Ms. Kim’s
post-Accident complaints of emotional difficulty. Dr. Solomons’ area of
expertise is entirely distinct from the concerns which the third party seeks to
have Dr. Kendall address.

[20]       
Dr. Tessler is a neurologist. He was properly retained to address Ms. Kim’s
complaints of severe headaches and of shoulder and back pain. The source or
root cause of these ongoing difficulties was not known to the third party. Such
complaints had a legitimate prospect of being neurological in nature. Had Dr. Tessler
concluded that Ms. Kim’s ongoing complaints and difficulties were
neurological in character, the need for a further examination by Dr. Kendall,
or any other physician with orthopaedic  expertise, would have been either
obviated or much narrowed.

[21]       
The question is whether the third party is prevented from having an
expert, with the now identified requisite skills, undertake a further medical
examination based on the fact that Dr. Tessler concluded at page 6 that Ms. Kim
"sustained a soft tissue cervical strain injury" rather than a
neurological injury and then addressed "the period of time for her
expected recovery" at page 7. I do not consider that this is so. Instead,
what has occurred is the natural result of a party, who does not yet have the
plaintiff’s expert reports, seeking to determine what underlies the plaintiff’s
ongoing complaints. That process is necessarily uncertain.

[22]       
Dr. Tessler confirmed at page 6 that there is no evidence of nerve
or spinal cord injury relevant to Ms. Kim’s neck or lumbar spine. He also
confirmed at page 7 that "further neurodiagnostic testing would not
provide any insight or have any clinical benefit". Still further, he
opined at page 7 that "her headaches are secondary to the cervical strain
injury and are best termed cervicogenic headaches that should be treated
symptomatically".

[23]       
The fact that the third party was able to eliminate a potential source
of the plaintiff’s problems and determine the true or proper source of Ms. Kim’s
difficulties does not prevent the third party from having a physician, with the
appropriate area of expertise, now undertake a further examination of Ms. Kim.

[24]       
The fact that Dr. Tessler has commented briefly on Ms. Kim’s
soft tissue injuries and on the prognosis for them, in response to the specific
questions which were put to him, similarly does not create any such impediment.
I also observe that Dr. Tessler did not appear to address such issues as Ms. Kim’s
knee and pelvic injuries, or as is often the case in the report of an orthopaedic
specialist, whether Ms. Kim suffered from any pre-existing degenerative
conditions.

[25]       
Nor do I consider that the "open-ended" nature of the
instructions given by counsel to Dr. Tessler created any difficulty. Those
instructions sought to have Dr. Tessler address, inter alia, the
issues of causation and Ms. Kim’s prognosis. The instructions from counsel
demonstrate a concern about influencing Dr. Tessler or otherwise guiding
his conclusions inappropriately. Restraint on the part of counsel, to avoid the
appearance of unseemly direction, is both prudent and appropriate.

[26]       
Limiting the third party’s assessment of the plaintiff’s soft tissue
injuries also potentially places the third party at a disadvantage at trial. Dr. Tessler,
as a neurologist, arguably lacks the qualifications and background to address Ms. Kim’s
soft tissue injuries as fully or as authoritatively as a physician with
orthopaedic expertise would. This raises the prospect that the plaintiff could
assert that Dr. Tessler lacks the qualifications to opine, for example, on
the prognosis for various soft tissue issues or, at a minimum, that his opinion
should be given less weight than the opinion of a physician with narrower and
more directly relevant expertise.

[27]       
Such concerns are not abstract. The qualifications and professional
focus of competing experts are routinely advanced as the basis or justification
for according a particular opinion greater weight. Limiting the third party to
the report or work of Dr. Tessler is not consonant with seeking to “ensure
reasonable equality between the parties”.

[28]       
Finally, I turn to the relevance of the severity of the plaintiff’s
injuries and the alleged impact of those injuries on Ms. Kim. These issues
are also germane to the plaintiff’s submission that "proportionality"
should influence the outcome of this application. While R. 1-3(2) establishes
that "proportionality" is an over-arching consideration which informs
the interpretation and implementation of the Rules, its significance,
however, is greater for some Rules then for others.

[29]       
Thus, for example, the former R. 26, which related to document
production, imposed a uniform obligation to produce documents under the
well-known Peruvian Guano standard, affirmed in Fraser River v.
Can-Dive, 2002 BCCA 219 at 12, 100 B.C.L.R. (3d) 146. Rule 7-1(1) has
modified this uniform standard. Instead, Rules 7-1(11)-(14) dictate how and
when the production of additional documents may be required. Within this regime,
"proportionality" will no doubt have much influence.

[30]       
In other cases or for other Rules, however, the reality is that
"proportionality", though not expressed in precisely those terms, has
historically and inherently already played a significant role. The former R. 30(1)
is an example of this. Under R. 30(1), courts routinely considered, as one of
many factors, the severity of the plaintiff’s injuries and the potential
magnitude of the plaintiff’s claim in addressing the appropriateness of further
independent medical examinations.

[31]       
Thus, for example, in Gulamani v. Chandra, 2008 BCSC, 1601 Madam
Justice Arnold-Bailey, in addressing the factors that underlay her decision
said, in part, at para.34:

…Third, the nature of some of the
plaintiff’s claims in this case, including a thoracic outlet syndrome and
chronic pain syndrome, and the plaintiff’s claim relating to her ongoing
physical and mental disability such that she is unable to practice her
profession and properly care for her family, make it a case of significant size
and medical complexity.

[32]       
Similarly, the former R. 68, regarding expedited litigation, engaged in
very similar considerations, with its reference to “proportionality” in
R.68(13) and its presumptive direction of “not more than one expert” in
R.68(33).

[33]       
Ms. Kim is a young woman. She says she suffers severely from
multiple complaints. She asserts that many of these injuries are acute in terms
of their severity and the ongoing difficulty they cause her. By way of example,
and without addressing each of her injuries, Ms. Kim claims that she
presently suffers from both headache and neck pain which she rates on a pain
scale at an 8 or 9 out of 10, where 0 equates to no pain and 10 equates to such
severe pain that it would cause one to seek emergency medical treatment. She
has discontinued her studies. The report of Dr. Tessler at page 3
indicates that she now only works two days a week.

[34]       
If it can be established that Ms. Kim’s present circumstances were
caused by the Accident, the “amount involved” in her claim has the prospect of
being quite significant, a relevant consideration under R.1-3(2)(a). Similarly,
the “issues in dispute”, a relevant consideration under R.1-3(2)(b), are
important for both parties.

[35]       
Accordingly, I am satisfied that considerations of “proportionality” do
not militate against the third party’s application but rather support the
appropriateness of the medical examination before Dr. Kendall that it
seeks. Further, I do not consider that the purpose of the report of Dr. Kendall
can properly be said to either bolster the report of Dr. Tessler or to
undermine its findings. Instead, I am satisfied that a further examination of Ms. Kim
by Dr. Kendall is necessary to have the plaintiff’s concerns properly
addressed by a physician with the requisite or appropriate expertise.

[36]       
Finally, I observe that there is no suggestion that Ms. Kim’s
examination before Dr. Kendall and the preparation of the ensuring report
will delay or adversely impact on the presently scheduled trial date.

[37]       
Costs of this application are to be in the cause.

“Voith J.”