Hein v. Linge, 2018 BCSC 1203

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Hein v. Linge, 2018 BCSC 1203 Date: 20180612 Docket: M106568 Registry: Kelowna Between: Shelley Hein Plaintiff And David Linge Defendant Before: Master McDiarmid in Chambers Oral Reasons for Judgment Counsel for the Plaintiff: L. TurnerCounsel for the Respondent: D.J.M. GriffinPlace and Date of Trial/Hearing: Vernon, B.C. June 12, 2018Place and Date of Judgment: Vernon, B.C. June 12, 2018 [1] THE COURT: This is an application for a subsequent independent medical examination by the defendants.

Because of theimpending trial date and the 84-day time limit set out in the Rules for delivery of expert reports (84 days before trial is, I believe June 25,so the delivery should then be on June 22), so that is imminent, I will give reasons now. [2] In giving oral reasons now, I reserve the right, if a transcript is ordered, to add additional references to the law and the facts.This will not change my decision. [3] The legal principles are well established. The starting point is Rule 7-6(1), and then (2), and then the oft-cited decision of Mr.Justice Bracken in Hamilton v.

Pavlova, 2010 BCSC 493, and in particular paras. 10-16. Granting a subsequent examination isdiscretionary. The principle is that there be a just determination of every proceeding on the merits and to ensure full disclosure. TheRules are given a fair and liberal

interpretation to meet those objectives. [4] Reasonable equality between the parties in preparation for a case for trial does not mean tit-for-tat expert reports. A subsequentexam will not be allowed for the purpose of attempting to bolster an earlier opinion. There must be a question or matter that could nothave been dealt with at the earlier examination. [5] There is a higher standard. The onus is on the party seeking. The application must be timely.

The report should be available insufficient time to comply with the rules of admissibility and allow enough time for the plaintiff to assess and respond if necessary.Generally, an order is reserved for cases where there are some exceptional circumstances. [6] The applicant has referred to a decision of Master Keighley, Walch v. Zamko, 2008 BCSC 433. That case dealt with whetherthere is a question or matter that could or could not have been dealt with previously.

Paragraphs 20-21 of that decision are as follows: [20] The overriding question is whether a second medical examination is required to ensure reasonable equality between the parties intheir preparation for trial: Wildemann v. Webster (1991), (BC CA), 50 B.C.L.R. (2nd) 244 (C.A.). [21] Reasonable equality does not mean that the defendant must be able to match expert for expert and report for report: McKay v.Passmore, [2005] B.C.J. No. 1232, 2005 BCSC 570. [7] The factual basis is set out in the Notice of Application at paragraphs 1-11: 1.

This action arises as the result of an alleged motor vehicle collision which occurred on or about March 25, 2013 at the intersection ofGerstmar Road and Highway 33 in the City of Kelowna, British Columbia (the "First Collision").

2. The Plaintiff was involved in a subsequent motor vehicle collision on October 11, 2013 which occurred at the intersection of Ziprick Road and Highway 33, in the City of Kelowna, British Columbia (the "Second Collision"). The Second Collision is the subject of the action brought by the Plaintiff in the Supreme Court of British Columbia Action No. 106548, Kelowna Registry. Background 3.

The Plaintiff, Shelley Hein, claims damages for personal injuries as a result of the First Collision as indicated in the Notice of Civil Claim filed in the within action on March 19, 2015 and as a result of the Second Collision as indicated in the Notice of Civil Claim filed in Action No. 106548, also filed on March 19,2015. 4. The Plaintiff claims against the Defendants in both actions for damages for personal injury. 5. The Defendant, David Linge, filed a Response to Civil Claim on June 29, 2015 and has admitted liability in the action involving the First Collision. 6.

The Defendants, Richard Carlson and Barbara Carlson, filed a Response to Civil Claim June 24, 2015 and have admitted liability in the action involving the Second Collision. 7. The Trials in the actions involving both the First Collision and the Second Collision have been scheduled to be heard at the same time, commencing September 17, 2018 for 15 days. 8. The 84-day deadline to provide reports is June 25, 2018. 9. The Plaintiff claims the following injuries as a result of the collision: Injuries The First Collision (March 25, 2013) 10.

It is alleged that this accident occurred when a vehicle turned left into the path of the Plaintiff's vehicle. The Plaintiff's claimed injuries as a result of the first accident are as follows:

a) Traumatic brain injury, with post-concussive disorder;

b) Impaired cognition, concentration and memory;

c) Dizziness and light-headedness;

d) Nausea;

e) Blurred and double vision;

f) Headaches;

g) Tinnitus;

h) Anxiety and depression;

i) Injuries to the nose;

j) Injuries to neck and back;

k) Right shoulder, arm and hand pain, with numbness and tingling;

l) Right leg bruising;

m) Right knee injury;

n) Sleep disturbance and fatigue. The Second Collision (October 11, 2013) 11. This accident is alleged to have occurred when the Plaintiff was stopped at a stop light and was rear-ended by another vehicle. The Plaintiff's claimed injuries as a result of the Second Accident are as follows:

a) Injuries to neck and back;

b) Left arm and hand pain, with numbness and tingling;

c) Aggravation of pre-existing anxiety and depression;

d) Sleep disturbance and fatigue. [ 8 ] From the initial motor vehicle accident, the plaintiff claims that she suffered a traumatic brain injury and other injuries which

may have a neurological nexus. I will not cite them all, but she pleads impaired cognition, dizziness, blurred vision, headaches, right shoulder numbness and tingling, for example. In the second motor vehicle accident, she pleads again left arm numbness and tingling that may have a neurological, which is to say nerve-based, nexus. [ 9 ] The plaintiff was referred by her family physician for treatment by a neurologist, Dr. Meckling. She had a nerve conduction study performed in May 2013.

This study was provided to the defendants, as were all of her clinical records, in a timely way. [ 10 ] The plaintiff has had a difficult life. This was referenced in the independent medical examination report of Dr. Wiseman dated March 9, 2017. I appreciate that much of what he has written is hearsay. He is a Kelowna psychiatrist. [ 11 ] In the plaintiff's response, counsel writes: [21] On September 15, 2016 counsel for the Plaintiff advised counsel for the Defendant that the Plaintiff had not been seen by Dr.

Meckling since November 2014. [22] The details of the Plaintiff's injuries, symptoms and treatment have been known by ICBC [that is the insurer for the defendant] since shortly after the First Accident, and by counsel for the Defendants since they were retained in 2015. [ 12 ] The evidence appended to all of the affidavit materials bears that out. [ 13 ] The defendants had previously proposed that the plaintiff be examined by a psychiatrist and by an orthopaedic surgeon. Those were both done consensually. I treat this as a second examination for the purpose of this application.

Both of those previous examinations were done in 2017. [ 14 ] The plaintiff's own expert, the psychiatrist Dr. Jones, doubts that an actual brain injury occurred. Counsel for the plaintiff has taken me through the extensive examinations conducted by the two independent medical examinations on behalf of the defendant.

Those show that neurological examinations and this particular issue of concern, traumatic brain injury, have been canvassed in these examinations. [ 15 ] The plaintiff has not retained a neurologist for an opinion, and does not intend to do so. [ 16 ] One of the decisions relied on by the defendant, is a decision of Mr. Justice Hood, Sinclair v. Underwood , 2002 BCSC 354 . That decision dealt with objections to a particular psychiatrist. In that case, plaintiff's counsel had acknowledged that the psychiatric examination was warranted.

The comments with respect to onuses and whatnot are on the issue of objections to the particular psychiatrist. That is not an issue present here. [ 17 ] I agree with the submissions that have been made in the response and in particular, that the insurer for the defendant has been aware for many years of the plaintiff's injuries. The trial date was set in early 2017 for this coming fall. The defendant and its counsel and insurers were aware of that.

There were no steps taken by them to seek an opinion from a neurologist until April 2018. [ 18 ] In that regard, Master Keighley, in Walch , at para. 2 , writes: [2] The plaintiff says that, in light of examinations attended at the behest of the defendants in 1997, the examinations now sought are "subsequent examinations" contemplated by Rule 30(2) of the Rules of Court and as such should not be ordered unless something has occurred since the first examinations which was not foreseeable or which could not have been addressed by the examiners on the first occasion.

The plaintiff relies upon the decision in Jackson v. Miller , [1999] B.C.J. No. 2751 followed more recently by my colleague, Master Hyslop in Shaw v. Koch (2004), 4 C.P.C. (6th) 271, 2004 BCSC 634 . [ 19 ] In considering timeliness, I have considered the fact that the first examination, which would have taken place on June 7, 2018, still was not set in a timely way, or sought in a timely way.

Had that examination taken place and a report produced, maybe even in compliance with the Rules, but at the 84-day deadline, that would have potentially jeopardized the trial date, but at least it would have been done in accordance with the Rules. To order what is now being sought would further prejudice the plaintiff's ability to respond to any opinion. [ 20 ] I am satisfied that the playing field is level. There is no neurologist who is going to be offering opinions for the plaintiff.

The issues that have been raised by the pleadings have been canvassed, including the neurological issues, by the defendant’s experts.

It is not a question here of there being no ability to have a fair trial on the merits. [ 21 ] I will repeat what I had said in submissions, which is that too often we are seeing late applications for independent medical examinations which, if granted, would jeopardize trial dates and would jeopardize the just, speedy and inexpensive determination of matters on their merits. [ 22 ] For all of those reasons, the application of the defendants is dismissed. [ 23 ] Costs to the plaintiff in the cause. “Master R.W. McDiarmid” MASTER MCDIARMID