IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20120419

Docket: M085239

Registry: Vancouver

Between:

Jason Walker

Plaintiff

And

John Doe and Insurance Corporation of
British Columbia

Defendants

Before: The Honourable Mr. Justice
Voith

Oral Reasons for
Judgment

[1]            
THE COURT: In this case, the plaintiff, Mr. Walker,
alleges that he was struck by a tire from an unidentified motorist while riding
his motorcycle.

[2]            
The nominal
defendant, ICBC, argues that the plaintiff’s description of how he was injured
is a fiction.

[3]            
Mr. Gough, a
professional engineer, has prepared a report that concludes that the damage to
the gear shift lever on the motorcycle Mr. Walker was riding is consistent
with Mr. Walker’s description of events.

[4]            
In particular, Mr. Gough
has concluded that "the leading edge of the shift lever from the
motorcycle is deformed laterally toward the motorcycle frame by approximately 9
millimetres".

[5]            
It is relevant
that the defendant has filed a report from its own expert, Dr. Toor, who
is also a professional engineer, which contests the validity of the conclusions
and measurements expressed or undertaken by Mr. Gough.

[6]            
It is clear to me
that what damage there was to the motorcycle, how much damage there was, and
the orientation or direction of that damage are questions of significant import
in this trial.

[7]            
These are issues that
have already been canvassed with several witnesses at some length.

[8]            
The specific issue
that has now arisen emanates from an attempt by counsel for ICBC to
cross-examine Mr. Gough on a document prepared by an ICBC damage estimator
that contained the following specific notation: "Gear lever (left foot)
misaligned and appears to be shifted up from resting position one-and-a-half to
two inches."

[9]            
Counsel for the
plaintiff argues that this statement constitutes an opinion, of which no notice
was given.

[10]        
Counsel for the
defendant argues that the statement is merely an observation.

[11]        
The issue is made
more complicated by the fact that Mr. Gough, in Appendix A to his November
26, 2010 report, purported to have access to the repair estimate in question,
though the specific portion of the report I have quoted from was not included
in the materials Mr. Gough reviewed.

[12]        
Still further, Dr. Toor
has apparently relied on the portion of the damage estimate that I have quoted
from in support of his own conclusions.

[13]        
The status of this
portion of the damage estimate is, thus, relevant to both the ongoing
cross-examination of Mr. Gough and to the report of Dr. Toor.

[14]        
Two legal propositions
are directly relevant. First, expert opinion based on hearsay evidence is
admissible to show the information that the opinion is based on, but not as
evidence going to the existence of the facts on which the opinion is based.

[15]        
In R. v. Lavallee,
[1990] 1 S.C.R. 852 at 896, Wilson J., speaking for the majority, said: 

…as long as there is some admissible
evidence to establish the foundation for the expert’s opinion, the trial judge
cannot subsequently instruct a jury to completely ignore the testimony. The
judge must, of course, warn the jury that the more the expert relies on facts
not proven in evidence the less weight the jury may attribute to the opinion.

[16]        
Second, evidence, for example, contained in a business record or
otherwise admissible under a principled analysis that expresses an opinion is
not admissible unless proper notice of that opinion has been provided. McTavish
v. MacGillivray (1997), 38 B.C.L.R. (3d) 306 at para. 10.

[17]        
In this case, I do
not at present have sufficient information before me to address either issue.

[18]        
The comments
contained in the damage estimate may constitute a mere observation. The
estimator may be saying no more than "the bumper was dented" – an
observation anyone could make.

[19]        
The same comments
may, however, constitute an opinion; for example, if the estimator in question
has unique skills and training and brought those skills and training to bear to
conclude that the lever in question was "misaligned", or to calculate
the degree or extent of that misalignment. Thus, it is not at all clear that the
misalignment that has been described would have been apparent to a layperson.

[20]        
Certainly, when
the defendants sought yesterday to exclude a portion of Mr. Gough’s report,
because of its recent delivery, they argued that the measurements in that
report and its conclusions constituted opinion evidence.

[21]        
At that time, and
in my reasons on that application, I said that I could not then decide that
particular issue. Instead, I admitted the report on another basis.

[22]        
Of further
relevance is the fact that though ICBC intends to call the estimator who
prepared the damage estimate, it appears unlikely that he will have any real
memory of the circumstances surrounding the production of his note.

[23]        
Thus, the issue of
the hearsay nature of the statement and Dr. Toor’s reliance on it arises.

[24]        
I have concluded
that at the present time neither the damage estimate document as a whole nor
the portions of it I have noted should be put directly to Mr. Gough. Similarly,
the jury need not and should not be aware of the existence of the document or
its contents.

[25]        
I am prepared,
however, to have counsel for ICBC — and I will explain this more fully
momentarily if there are questions arising from it — pose a hypothetical in
the form of the conclusion expressed in the damage estimate to Mr. Gough.

[26]        
If those
assumptions or that hypothetical are never proven or established, I can deal
with that issue separately in my charge to the jury.

[27]        
I have further
concluded that the estimator who authored the damage estimate should be called
in a voir dire. In that setting, the questions of what, if anything, the
author recalls of the damage estimate, whether he had any training to make the
observation in question, and what specialized training was brought to bear in
making his comments, can all be pursued.

[28]        
In addition,
absent the estimator having some specific recollection, the prima facie
hearsay nature of his comments can be further addressed in the submissions of
counsel.

“Voith J.”