IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151127

Docket: M123216

Registry:
Vancouver

Between:

Denise Norris

Plaintiff

And

Timothy J. Burgess
and Rebecca La Bly

Defendants

– and –

Docket: M134481

Registry:
Vancouver

Between:

Denise Norris

Plaintiff

And

South Coast
British Columbia Transportation Authority
MVT Canadian Bus Inc. and John Joseph Scarr

Defendants

Before:
The Honourable Mr. Justice Funt

Ruling-Admissibility of Evidence

[1]           
This ruling is made during a trial before me sitting with a jury.

[2]           
The plaintiff was involved in two motor vehicle accidents. She claims
that she suffered injury and loss as a result of these accidents. Two actions arose
and are being heard together.

[3]           
The defendants in the respective actions have admitted complete fault.

[4]           
In their respective Responses, the defendants have pleaded that the
plaintiff “sustained no injury, loss, damage or expense” as a result of the
collision. Among other matters, the defendants have also pleaded that any
alleged injury is attributable to pre-existing injuries or conditions, and that
the accidents did not aggravate any pre-existing injury or condition.

[5]           
Before trial, the defendants requested that the plaintiff attend for an
examination with a psychiatrist selected by the defendants in order that the
defendants would have the benefit of the results of an independent medical examination.

[6]           
The plaintiff attended the examination with the selected psychiatrist as
requested.

[7]           
The Court understands that the defendants chose not to obtain a medical
opinion from the psychiatrist and will not be calling the psychiatrist as a
witness. Defence counsel has provided plaintiff’s counsel with a copy of the
psychiatrist’s notes related to the plaintiff’s examination.

[8]           
Plaintiff’s counsel seeks a ruling that the plaintiff may testify as to her
attendance and surrounding circumstances of the independent medical examination
requested by the defendants.

[9]           
Plaintiff’s counsel argues that the plaintiff’s testimony is relevant to
show, among other matters, that she has not exaggerated her injuries. Plaintiff’s
counsel also wishes to have the factual basis of the independent medical
examination in order that an adverse inference may be sought during closing
argument if the evidence at trial warrants such an argument.

[10]       
Defence counsel says that it would be highly prejudicial for the
plaintiff to tell the jury that the she attended an independent medical
examination requested by the defendants. Defence counsel argues that this will
be prejudicial because the psychiatrist will not be called and no report has
been produced. Defence counsel states that if the plaintiff mentions her
attendance at this medical exam, the jury will draw an adverse inference.

[11]       
Defence counsel submits that the jury should be told that the plaintiff
attended the independent medical exam at the time of closing argument and jury
instruction. With such, defence counsel says there would be no prejudice
because the examination would be placed in context.

[12]       
The Court will rule in the plaintiff’s favour.

[13]       
As Rule 7-6 of the Supreme Court Civil Rules contemplates, an
individual medical examination may be ordered where the “physical or mental
condition of a person is in issue”. In this case, the independent medical
examination was not pursuant to a court order. The Rule, however, illustrates
that an independent medical examination will usually occur only where there is
a physical or mental condition in issue.

[14]       
The plaintiff’s medical condition is clearly in issue. Where the defence
asserts that the plaintiff may have exaggerated her injuries, steps taken by
the plaintiff at the request of the defence may be relevant.

[15]       
Even if there were for closing argument an agreed stipulation of the
plaintiff’s attendance at the independent medical examination, I would prefer
that the evidence be led as part of the plaintiff’s case. I would be concerned
that the jury could be confused. Evidence and argument should be kept separate.

[16]       
Civil litigation is adversarial and litigant-driven. Where one party
asks that the other party attend an interview or examination with a third
person (whether or not that person is an expert) and the other party so
attends, the requesting party should not be surprised that the interview or
examination may be relevant with evidentiary consequences, including the
possibility of an adverse inference. An unwanted but foreseeable consequence
does not give rise to unfair prejudice.

[17]       
In short, plaintiff’s counsel may lead evidence as to the plaintiff’s
attendance, and surrounding circumstances, regarding the independent medical
examination requested by the defendants.

“Funt J.”
“Funt J.”