IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100622

Docket: M053881

Registry:
Vancouver

Between:

Teddy Tadeusz Zawadzki

Plaintiff

And:

Santiago Calimoso and

U-Haul Co. (Canada) Ltd./U-Haul Co. (Canada) Ltée

Defendants

Before:
The Honourable Mr. Justice Voith

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: These are Oral Reasons arising from an application
brought by the defendant Mr. Calimoso to have the plaintiff, Mr. Zawadzki
attend at an independent medical examination before Dr. Baker. Dr. Baker
is a physician who specializes in addiction disorders. The defendant U-Haul Co.
(Canada) Ltd. takes no position on the application.

[2]            
The application arises in an action brought by Mr. Zawadzki for
injuries he suffered in a motor-vehicle accident that occurred in September
2004. The case is presently scheduled to go to trial on September 13, 2010 for 20 days. I am the case management judge for the matter.

[3]            
The circumstances and background giving rise to this application are not
in dispute. In the first few years after the accident, the plaintiff complained
primarily of his physical injuries and initial independent medical examinations
focused on these injuries and the issues related to them.

[4]            
In the summer of 2008, there was some change in focus and an expansion
of the plaintiff’s claim in terms of the nature of the injuries he alleged
arose from the accident. More precisely, in January 2008 the plaintiff was seen
by Dr. le Nobel, a specialist in physical medicine and rehabilitation. Dr. le
Nobel concluded that Mr. Zawadzki had suffered a mild brain trauma from
the accident and he recommended further evaluation by a neuropsychologist.

[5]            
In September 2008, the plaintiff served the report of Dr. Cohen, a
neuropsychologist, who concluded that Mr. Zawadzki had a mild traumatic
brain injury which was causing him cognitive difficulties. Dr. Cohen’s
report changed, as I said, the focus and complexity of the case. The then scheduled
trial date of November 17, 2008 was adjourned. The plaintiff filed an Amended
Statement of Claim and further discoveries were undertaken by the defendant.

[6]            
Following receipt of Dr. le Nobel’s report, counsel for Mr. Calimoso
scheduled further independent medical examinations with Dr. Phil Teal, a
neurologist and Dr. Jeanette Smith, a psychiatrist. Dr. Smith has
prepared a report dated April 26th, 2010. Dr. Smith has advanced numerous
opinions. Of note for the present purposes are the following excerpts from her
report:

(A)      Under the heading
"Diagnosis", Dr. Smith said:

This would suggest that any brain trauma was very minor in
nature. In my opinion, other factors are more likely to have accounted for his
cognitive difficulties. In particular his very heavy and sustained alcohol
consumption, which caused markedly elevated liver enzymes. The CT scan findings
of diffuse cerebral atrophy would also be consistent with prolonged and heavy
drinking. Heavy and prolonged drinking can result in increased memory loss or
cognitive processing, and cognitive thinking. Depression and anxiety are also
associated with poor concentration, memory problems and difficulty with
decision making.

It is therefore my opinion that
the evidence for traumatic brain injury is weak, and that his cognitive
difficulties are more likely attributable to these other conditions.

(B)      Under the heading
"Etiology", Dr. Smith said, in part:

Given Mr. Zawadzki’s genetic vulnerability to alcohol
abuse, and the reported episode of heavy drinking in the mid-1990s, it is quite
possible that he would have gone on to become an alcoholic at some point in the
future, although it is also possible that he may have remained a social drinker
who consumed alcohol in moderation.

On the basis of the available
information, it would appear that he began to abuse alcohol in an attempt to
self-medicate pain and dysphoria that followed the September 2004 accident; and
therefore, it seems likely that the accident and the physical injuries that it
caused play a major role in fueling his subsequent alcohol abuse problem. Unfortunately,
as noted above, the alcohol in turn has likely aggravated the concurrent
depressive and anxiety disorders.

(C) Dr. Smith has a section in her report entitled
"Treatment", which details proposed treatment to assist Mr. Zawadzki to manage his depression, anxiety, and pain
symptoms, as well as his alcohol dependency.

(D)     Finally, under the heading
"Prognosis", Dr. Smith opines:

Without treatment the prognosis for improvement in his
depressive and anxiety symptoms is very poor, as his symptoms have essentially
continued for more than five years, and remain clinically significant. As
indicated above, unfortunately, Mr. Zawadzki has not received treatment
for his major depression, or generalized anxiety disorders; and therefore, it
remains to be seen what extent he can benefit from treatment.

Generally speaking, the majority of people do benefit from
antidepressant medications and cognitive behaviour therapy, so this is likely
to be the case for Mr. Zawadzki. With treatment, I would anticipate that
his sleep will improve, and this in turn would likely lead to an improvement in
his cognitive functioning, although, if as I suspect that much of the
impairment comes from alcohol related damage, it is possible he will not regain
his former cognitive functioning.

Furthermore, should he relapse
into drinking heavily again, this may well lead to a marked worsening of his
clinical depression and anxiety, while also causing a worsening of his memory.

[7]            
The plaintiff, in turn, has seen Dr. Shane who is also a
psychiatrist. Dr. Shane has prepared a report which was served in May 2010
in which he opines that Mr. Zawadzki’s cognitive difficulties may be due
to a variety of factors, including his alcohol consumption. Specifically, Dr. Shane,
under the heading "Conclusion", has said:

The accident has precipitated issues of ongoing pain in his
right elbow. A number of surgical procedures, the abuse of alcohol to minimize
his pain, and a significant depression, of an ongoing protracted nature with
suicidal ideation. He suffers from alcohol withdrawal symptoms, and needs
ongoing psychotherapeutic support, consideration for antidepressant medication,
involvement with Alcoholics Anonymous, and ongoing attention to the pain in his
elbow.

I am concerned about his
prognosis, psychologically and occupationally. This is a problem with many
factors that may be responsible for his psychological struggles. The impact of
these very issues has no doubt had a deleterious effect on his global
functioning.

[8]            
Counsel for Mr. Calimoso say that the recent reports of Drs. Shane
and Smith now require the defendant to retain an expert who can properly
address various issues relating to Mr. Zawadzki’s alcohol dependence. In
particular, the following issues are described in counsel’s written submissions
as essential to the proper disposition of the matters at trial:

In the absence of the accident, how likely is it that Mr. Zawadzki
would have remained or been a social drinker consuming moderate amounts of
alcohol?

How likely is it that Mr. Zawadzki would have benefitted
from treatment for his alcoholism, if he had sought it at any point before or
after the accident?

How likely is it that Mr. Zawadzki
will in the future, successfully manage his alcohol consumption?  Is such
management dependent on him seeking treatment?

[9]            
The defendant argues, I believe accurately, that a specialist in
addictions can more fully assess these questions than Dr. Smith has. This
is not, however, the test that pertains to an application brought under Rule
30.

[10]        
In the recent case of Hamilton v. Pavlova, 2010 BCSC 493, Mr. Justice
Bracken, in a case that has certain factual parallels to this case, succinctly
summarized the various factors relevant to a court exercising the discretion which
is conferred by Rule 30(1). Specifically he 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 backdrop 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] B.C.J. No. 2304
(B.C.C.A.) at pp. 2-3.

[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 p. 11 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, supra, at p. 3.

[11]        
A further list of relevant principles is contained in Reischer v.
Love, 2005 BCSC 580, 68 B.C.L.R. (4th) 175. In that case, one of the
various guiding principles that is advanced is that “a second examination may
be appropriate where there is some question which could not have been dealt
with on the first examination” (para.14).

[12]        
At bottom, the additional medical examination sought by Mr. Calimoso
is not necessary. Based on the reports of both Dr. Smith and Dr. Shane,
Mr. Zawadzki appears to suffer from a number of related difficulties which
include depression, anxiety, and an alcohol dependence.

[13]        
A review of the report of Dr. Smith shows that it already expressly
addresses the various questions which the defendant says are central to the
action and which pertain to Mr. Zawadzki’s difficulties with alcohol. What
the defendant seeks is to have a further expert with greater or more refined
skills in the area of addictions focus on and expand on the opinions already
expressed by Dr. Smith.

[14]        
I have said that I expect Dr. Baker has greater experience in the
area of addictions than Dr. Smith. This reality is reflected in his résumé.
It is also the natural consequence of retaining experts with ever narrower or
more focused areas of experience. Thus, I have no doubt that the defendant
could find an expert with more focused experience in the area of depression
disorders than Dr. Smith. He could also likely find a physician who
specializes more narrowly in anxiety disorders.

[15]        
This, however, as I have said, is not the test or question which is
relevant to determining the issue before me. Dr. Smith has experience in
each of these areas. She is knowledgeable in the area of addiction disorders
and her résumé reveals that she is in fact published in this area. What the
defendant seeks to do, and which it cannot do, is to bolster and expand upon
the existing report that it has from Dr. Smith. The report it seeks is not
necessary to level the playing field.

[16]        
Indeed, though this is not the measure relevant under Rule 30(2), the
plaintiff does not have a report from an addictions expert. Still further, I
was advised that the plaintiff has already attended five independent medical
examiners which has resulted in ten different expert reports having been
served.

[17]        
I am reinforced in my conclusion by a further factor. The issue of Mr. Zawadzki’s
alcohol dependence has been known for some time. I understand he was already
discovered on this issue in the second of his three discoveries. That discovery
pre-dated November 2008. The defendant, in its written submissions,
acknowledges that it was the report of Dr. Cohen that expressly identifies
a history of alcohol abuse, and of Dr. le Nobel, that prompted the further
independent medical examination by Dr. Smith. Dr. Cohen’s report was
served in September 2008.

[18]        
The independent medical examination with Dr. Smith was not,
however, scheduled until the fall of 2009; and the assessment by Dr. Smith
did not take place until April 26, 2010. A further independent medical
examination with Mr. Zawadzki at this late date has the very real prospect
of giving rise to a further adjournment of a trial that has already been twice
adjourned and which pertains to events that took place six years ago.

[19]        
For the foregoing reasons, the defendant Mr. Calimoso’s application
is dismissed. Costs are to be in the cause.

“Voith
J.”