Barlow v. Smoch, 2010 BCSC 1942

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Barlow v. Smoch , 2010 BCSC 1942 Date: 20101126 Docket: 07-31076 Registry: Prince George Between: Ricky Lloyd Barlow Plaintiff And: Stephen C. Smoch, Brian L. Hilborn and 629485 British Columbia Ltd. Defendants Before: Master Taylor Oral Ruling re Adjournment In Chambers Counsel for the Plaintiff: A. Kemp Counsel for the Defendant Stephen Smoch appearing via teleconference: K. Armstrong Counsel for the Defendants Brian Hilborn and 629485 British Columbia Ltd. appearing via teleconference: D.C.

Fong Place and Date of Hearing: Please and Date of Judgment: November 26, 2010 Prince George, B.C.

November 26, 2010 Prince George, B.C. [ 1 ] THE COURT: This is an application by the plaintiff for an adjournment of a trial currently scheduled to commence on Monday, January 31, 2011, and that a new date be fixed by counsel. [ 2 ] The background is that the plaintiff was a passenger in motor vehicle operated by the defendant Smoch when that vehicle collided with the rear end of a parked dump truck-trailer combination that had been driven by the other defendant, Hilborn, and owned by the defendant, the numbered company.

The accident took place on December 16th, 2006, on Highway 97, south of Prince George. [ 3 ] As a result of the accident, of which the plaintiff has no recollection, it has been determined that the plaintiff suffered severe injuries as a result of the collision, including severe traumatic brain injury with left-sided hemiparesis. [ 4 ] A writ and statement of claim was filed on the 26th of November, 2007, and the pleadings closed with the last set of statements of defence filed on the 24th of April, 2008. Thereafter, circulated amongst counsel in or around June of 2008 is the complete RCMP file.

Examinations for discoveries occurred on the 13th and 14th of July, 2009. At one time, a trial date had been set to commence on May 25th, 2010, but discovered months before was an error that documents to set the trial date had not been filed. This matter is now set for trial before a jury at the request of the defendant Smoch. [ 5 ] The application for the adjournment was filed November 2nd.

It was initially hoped to be heard on the 15th of November last, but there was no court time, so today is the first time this matter has been able to be heard. [ 6 ] The defendants submit that there really ought to be some reason expressed for the application for the adjournment, in order for the court to make a determination as to whether or not the balance of prejudices test should be applied. In that regard, plaintiff's counsel points out that the plaintiff has been assessed by Dr. Kaushansky, a neuropsychologist, twice, on the 10th of September, 2007, and again on the 25th of March, 2009.

In his report of the 18th of June, 2009, Dr. Kaushansky gave the opinion the plaintiff probably needed psychiatric assessment. He wrote that he would defer to the opinion of a vocational consultant on the issue of whether the plaintiff might be competitively employable in another field, and identified other physical limitations from which the plaintiff continued to suffer as a result of the collision. [ 7 ] After receipt of the Kaushansky report, plaintiff's counsel booked an assessment of the plaintiff by Dr. Derryck Smith, a psychiatrist. Given that Dr.

Smith is a busy, practising psychiatrist, whilst booking this appointment in July of 2009, they were not able to obtain an appointment for Dr. Smith until June 1st, 2010. Thereafter, plaintiff's counsel obtained bookend assessment appointments with Dr. Nairn Stewart, a physiatrist in Vancouver, on the 31st of May, 2010, and the day after Dr. Smith's assessment, an assessment of

the plaintiff by Richard Carlin, a vocational consultant, on June the 2nd. So these were back to back to back assessments carried out three days in a row of the plaintiff by the various medical practitioners and assessors. [ 8 ] Very shortly after the assessment by Dr. Smith, plaintiff's counsel received Dr. Smith's report. However, the difficulty has arisen in that, to date, even in spite of the fact that the plaintiff was assessed by Dr. Stewart on the 31st of May, 2010, no report has yet been received from Dr. Stewart.

It has been emphasized that this is despite reminder letters being sent and telephone calls to Dr. Stewart's assistant, or at least to Dr. Stewart's office to remind and to request the report. Mr. Carlin, the vocational consultant, has indicated he cannot complete his report until he has Dr. Stewart's report in hand. [ 9 ] Also following the assessment of Dr. Kaushansky, counsel retained Janice Landy, a rehabilitation consultant, to assess the plaintiff. This was scheduled for September 30th and October 1st. Ms. Landy has provided a report dated October 27th, 2010.

She has set out a list of rehabilitative requirements of Mr. Barlow, the plaintiff, for the remainder of his life, and of course finding anticipated monthly or annual costs associated with each item. [ 10 ] What I understand to have occurred is that Ms. Landy, whilst needing the opinion of Dr. Stewart, without having the written report, actually contacted Dr. Stewart, spoke to her, and obtained verbally her opinion with respect to the plaintiff. I should point out that Dr.

Stewart is a physiatrist, a physician who specializes in physical medicine and rehabilitation. [ 11 ] Currently I think we are somewhere in the vicinity of 66 days out from the trial date of January of 2011. There were a number of concerns raised by counsel for the plaintiff as a result of not being in possession of Dr. Stewart's report. One is that if Ms. Landy's report is to be relied upon, then a significant portion of Ms. Landy's report, which is underpinned by Dr. Stewart's opinion, may not be taken into account, if Dr.

Stewart's opinion is not before the court. [ 12 ] The other is based upon the assessment reports, both vocational and rehabilitative, where certain economic factors come into play with respect to the calculation of loss of future income or cost of future care.

It is difficult, it is submitted, to put those items before the court by way of an economic report until such time as the required assessments are before the court, and an economist would have to be retained to do that. [ 13 ] All of which is to say that a certain amount of the plaintiff's case to be put before the court in the assessment of damages for future costs, the cost of future care and loss of future income, rely somewhat upon the underpinning report of Dr.

Stewart. [ 14 ] I have also been advised by counsel for the plaintiff that there were other concerns about the plaintiff's condition post-accident, one of which is the lack of balance, which has not been addressed by any other specialist, and probably because no other specialist could address it the same way that a physiatrist could. [ 15 ] So is there a rationale for the application for adjournment? If one is addressing trial tactics, I would say there is.

There may also be, although it is not deposed to specifically, that further investigation of the medical condition of the plaintiff might be required, if it pans out that there is some indication about the plaintiff's balance problems that may come to light with Dr. Stewart's report. [ 16 ] Essentially, the defendants have said there are three points in issue here: liability is in issue, and there is a concern about the waning memory of Mr. Hilborn, the truck driver defendant, because he is currently 73 years of age.

There is also the issue that the defendants say the medical evidence has been fully and completely developed, and that really there is no need at this juncture for any further medical evidence, and lastly, that it is a premature application.

In any event, there is a trial management conference scheduled for 11 days from now and the application for adjournment would be more aptly brought at that time, although applications at trial management conferences generally do not have any affidavit material, because there is a prohibition against affidavit material being brought before the judge at the trial management conference currently in the rules. [ 17 ] I have to make a determination, I think, based upon the cases that define the discretion that a master or judge must utilize in an application such as this, which is to balance the prejudices that may or do exist for each of the parties in relation to the application for adjournment. [ 18 ] The defendants ask me to consider the age of the defendant Hilborn in relation to that and his possible waning memory.

The plaintiff's counsel says if that should or continues to be an issue, then the parties could easily

schedule a video deposition of Mr. Hilborn and have his evidence preserved for posterity in the event that, if this matter is adjourned, Mr.

Hilborn is not available due to illness or death, and that his evidence could be put forth before the court by video. [ 19 ] The other side, the plaintiff, whilst maybe not saying it specifically, impliedly says the prejudice to the plaintiff is so, because he has not been able to put all of the information before the court to assist the court in reaching a determination with respect to calculations of future care costs and future loss of income, that the plaintiff would be significantly prejudiced by that. [ 20 ] The determination I have to make now is whether the plaintiff would be so prejudiced by having this matter proceed to trial, in light of all of the circumstances, or whether the defendant would be prejudiced to the extent that there would be some waning of the memory of the defendant Hilborn. [ 21 ] Remembering of course that the plaintiff is a severely brain-injured individual with hemiparesis, it would behoove me ultimately to weigh the prejudice in favour of the plaintiff and make a determination that the trial ought to be adjourned, not through any fault of counsel or the parties, but more I think because there is an unexplained failure to provide a report following a medical assessment by a medical professional. [ 22 ] When I say unexplained, I do not say that meaning plaintiff's counsel has not explained it; I mean Dr.

Nairn Stewart has not explained her lack of attention to requests for the report following her assessment of the plaintiff on the 31st of May last, which I think is unacceptable. [ 23 ] I say parenthetically that this may be a matter that counsel and the parties should be taking up with the College of Physicians

and Surgeons, because in this case it is, without a doubt, in my view, Dr. Stewart's lack of production of the document requested that has ultimately resulted in the adjournment of the trial. [ 24 ] As for costs, there is not a lot of blameworthy conduct here over which costs could be assessed. I think every party has had a legitimate rationale for having the positions they have taken with respect to the particular application, which I find to be somewhat unique in the circumstances. So I will say that I think each party should bear its own costs of this application. “Master Taylor”