IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160211

Docket: M146418

Registry:
Vancouver

Between:

Nachhatar S.
Takhar

Plaintiff

And

Ajit S. Sidhu,
0751592 B.C. Ltd.

and Star Limousine
Service Ltd.

Defendants

Corrected
Judgment:  The text of the judgment was corrected on the front page on March 22,
2016.

Before:
Master Baker

Oral Ruling

In
Chambers

[1]            
THE COURT: This is an application by the defendant in
proceedings brought by Mr. Takhar respecting injuries he alleges arose from a
motor vehicle accident which occurred in October of 2012.

[2]            
What is requested is that Mr. Takhar attend with Dr. Dost, a
neurologist, that he do so on the 23rd of February. He has already attended on
one defence medical examination. That is by Dr. Younger, an orthopedic surgeon.
That report has not been delivered.

[3]            
This application is dismissed for the following reasons. There is no
question that Mr. Takhar has a complex and interesting past when it comes to injuries.
No question at all about that. What is among other things relevant to that is
that the plaintiffs seem to have been exceptionally forthcoming in producing
information.

[4]            
There are two things that vex the bench in personal injury cases. It is
pleadings and disclosure. The pleadings are, and I have become possibly
famously critical of this, so template that they are almost transferable. This
is not that case at all. Quite the opposite. In fact, it is possible it is at
the extreme opposite.

[5]            
We are also faced with consistent and chronic applications for
disclosure, whether they are in case planning conferences or chambers
applications. Again, this is not that case either, and I am satisfied it is
quite the opposite. That factors into a couple aspects of this.

[6]            
That disclosure has gone all the way back to Mr. Takhar’s wrist injury
in 1989, hospital records back to that, his physician’s records I understand
from 2007. It is a matter of fact and acknowledged that he had ankle injuries
in 1995/96. He had a work‑related lower back injury in 2008. He had a
different motor vehicle accident with consequences, of course, in May of 2010. He
also had a work‑related back issue in December of that year, and in 2010
he had some psychiatric consultation respecting depression and chronic pain,
all of these pre‑accident, all of these out there, so to speak, and
discussed.

[7]            
The consequents of this accident, he says, are, well, “multiple” would
be a huge understatement. He had pled by my count 78 different consequences, results
or symptoms from lacerations, broken bones, to other factors.

[8]            
Seems to me that in this constellation of injuries and consequences the
neurological aspects of this are, in that constellation, practically Pluto. It
would be almost unthinkable that somebody who has had the history that Mr.
Takhar has had or claims to have had the 78 different injuries or results of
his accident, it would be practically unthinkable that somewhere in there,
there would not be a neurological element. Of course there would be. It is
pretty hard to do all those things to somebody, break those bones, scrape them
up, cut them, scratch them, bang their heads and not have some neurological
implications.

[9]            
But what is fascinating to me is that, as Mr. Dosanjh has said, in the
blizzard of medical records, papers, consultations, reports, from Worker’s
Compensation to treatment reports to these proceedings themselves, there is
practically speaking no indication of neurological examinations or symptoms
having been observed. It is true, it is one of the oldest clichés in this particular business
that the absence of evidence is not necessarily evidence of absence. We
understand that. But in this case I think it is pretty compelling. Hard to
prove a negative but it seems to me that in this situation it is awfully close
to that.

[10]        
The various factors that are listed by the defence as compelling the
neurological investigation are paragraph 20 of the application itself. I agree
again with Mr. Dosanjh that they are in large measure, in my respectful view as
a non‑expert, orthopedic in nature.

[11]        
I said that the extensive disclosure has a couple of aspects of interest
to it. One I have already referred to, that in all that disclosure there seems
to be very little, or anything, that rings that neurological bell, but also I
agree with Mr. Dosanjh in this:  the high volume of disclosure together with
the delivery some months in advance, of the plaintiff’s IME by Dr. Anton, a
physiatrist, must have guided the defence to their choice. They get one choice
under the rule, and that was made clear to them by Mr. Dosanjh. And they
had ample time, ample documents by which to choose that expert, and they chose
an orthopedic surgeon, Dr. Younger.

[12]        
That addresses the onus, in part at least, given that it is not anything
done in a dearth of information or on a very short term opportunity. It is
quite the opposite. This may be a full answer to the application in and of
itself:  nobody has ever seen Dr. Younger’s report, certainly nobody from the
plaintiff’s side and not the court either.

[13]        
I agree entirely with counsel when I say that the answer to that aspect,
that to an application in the circumstances in Thandi v. Higuchi, 2015
BCSC 2366, a decision of Master Harper, referring in part to Koulechov v.
Dunstan, 2015 BCSC 393, both cases which address at least in part the
problem of the court considering a second IME, recognizing that the rules
require that the defence meet a higher onus on such an application.

[14]        
There is the difficulty or possibly the impossibility, and I do not
think that word is used unwisely, the practical impossibility of measuring that
onus or the achievement of it in the absence of the report of the first IME. We
do get these. We hear these applications. We hear applications obviously and of
course for second IMEs, but very often a party will come to the court and say, “here
is the report of the first IME, there are complex injuries, and this
specialist, say an orthopedic surgeon, has observed this and this and here at
page 27 of Dr. Smith’s report is a clear delineation of the limits to Dr.
Smith’s knowledge and ability to ascertain a very problematic symptom, the
causes of it”.

[15]        
Very often they will say, “look, this looks to be beyond my area of
expertise, this looks to be a problem psychiatric in nature or neurological in
nature” or something like that. Good. Now the court has something to anchor its
analysis to. We do not have that here.

[16]        
So for all these reasons this application is dismissed with costs.

“Master
Baker”