Hove v. Inglis

2012 BCSC 1409 Hove v. Inglis

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Hove v. Inglis, 2012 BCSC 1409 Date: 20120926 Docket: 46479 Registry: Vernon Between: Rhonda Michelle Hove Plaintiff And Charles Wayne Inglis and British Columbia Hydro & Power Authority Defendants Before: Master McDiarmid Reasons for Judgment Counsel for the Plaintiff: G.P. Weatherill, Q.C. Counsel for the Defendants: R.E. Ross Place and Date of Hearing: Vernon, B.C. August 28, 2012 Place and Date of Judgment: Vernon, B.C. September 26, 2012 [1] There were two notices of applications heard by me on August 28, 2012. [2] By notice of application filed August 16, 2012, the plaintiff sought to further amend its notice of civil claim. [3] As stated in paragraph 7 of Part 2 of the notice of application: 7. The Second Further Amended Notice of Civil Claim proposed will ensure that the Plaintiff's injuries itemized in the various medical/legal reports that had been previously served are included therein. [4] The amendments sought were to add the following particulars of injuries suffered by the plaintiff to paragraph 2 of the notice of civil claim: i) head injury/concussion; j) fibromyalgia/chronic pain; k) labral tear to and pain in her left hip; l) soft tissue injury/muscle strain to left shoulder; m) psychological injury, including driving anxiety. [5] By notice of application filed August 22, 2012, the defendants sought the

following orders: 1. The Plaintiff attend and submit to an Independent Medical Examination with Physiatrist, Dr. Michael Piper, on November 1, 2012, at 10:45 a.m. at #102 - 65 Richmond Street New Westminster, B.C.; 2. The Defendants will pay the Plaintiff's reasonable expenses to attend the Independent Medical Examination with Dr. Piper in New Westminster, B.C.; 3. The Plaintiff attend and submit to an Independent Medical Examination with Psychiatrist, Dr. Paul Milanese, on May 9, 2013, at 11:00 a.m. at 301 - 3320 Richter Street, Kelowna, B.C.; 4. The Defendants will pay the Plaintiff's reasonable expenses to attend the Independent Medical Examination with Dr. Milanese in Kelowna, B.C.; 5. The Plaintiff make herself available for a further examination for discovery at a time and place to be determined; 6. Costs of this application to the Defendants; 7. Such further other relief as this Honourable Court deems just. [6] In paragraphs 8 through 17 inclusive, the defendants set out some of the factual background. Those paragraphs are as follows: 8. The Plaintiff was involved in a motor vehicle accident which occurred on June 11, 2008, which occurred in Vernon, British Columbia ("the Accident").

9. As a result of the Accident the Plaintiff commenced the action herein for damages for personal injuries resulting therefrom ("the Action").

10. Liability for the Accident has been admitted.

11. The Trial in this Action was set for 8 days commencing May 28, 2012.

12. The Trial was subsequently adjourned.

13. An Examination for Discovery for the Plaintiff was conducted on October 17, 2011.

14. On June 7, 2010, the Plaintiff filed a Statement of Claim, alleging that she sustained the following injuries as a result of the Accident: a. Injury to the neck; b. Injury to the back; c. Severe headaches; d. Throbbing in her head; and e. Sleep disturbance.

15. On July 21, 2010, the Plaintiff filed an Amended Notice of Civil Claim to comply with the new Supreme Court Civil Rules.

16. On February 28, 2011, the Plaintiff was granted an Order granting her leave to amend her Notice of Civil Claim.

17. On March 8, 2011, pursuant to the order of February 28, 2011, the Plaintiff filed a Further Amended Notice of Civil Claim, alleging new injuries as follows: a. Injury to her left hip; b. Injury to her groin; c. Injury to her shoulders; and d. Injury to both knees. [7] This case was set to proceed to trial on May 28, 2012 for eight days. The trial did not go ahead because there was no judge available. [8] Prior to approximately the third week in April 2012, the defence of this action was conducted by a lawyer who is not now counsel for the defendants. The defendants are currently represented by Mr. Ross, who spoke to these applications, and by Kyle Watts. They practice at Kidston and Company LLP. Mr. Watts was formerly with the law firm of Davidson Lawyers LLP; it was a lawyer at that firm who had conduct of the defence of this action prior to the third week of April 2012. [9] On May 3, 2012, Mr. Watts filed the trial certificate. It states: I, KYLE D. WATTS, lawyer for the Defendants, CERTIFY THAT: 1. I will be ready to proceed on the scheduled trial date, May 28, 2012, at Vernon, British Columbia.

2. My current estimate is that the Trial will last eight (8) days.

3. I have completed all Examinations for Discovery. There are three other paragraphs which are not of relevance to these applications. It is dated Tuesday, April 17, 2012 and signed by Kyle D. Watts, Counsel for the [Defendants]. [10] The defendants filed an affidavit of Valerie Werner sworn August 21, 2012 and filed August 22, 2012. She deposes that she is a paralegal at the law firm of Kidston and Company LLP, counsel for the defendants. She accurately deposes as follows: 5. The Trial in this Action was set for 8 days commencing May 28, 2012. ...

15. The deadline for service of expert opinion was March 2, 2012. [11] In paragraph 16 of her affidavit, Ms. Werner details and attaches as exhibits fourteen expert opinion reports delivered by the plaintiff to the defendants. She sets out the dates of the reports and the dates they were served. [12] There are two reports from Dr. Andrew Travlos, a physiatrist; two reports from Danielle Ponder, an occupational therapist; a report from Dr. Keith Christian, an orthopaedic surgeon; a report from Dr. Paul Etheridge, a general practitioner, who has, amongst other things, a CCFP designation. [13] In his report, Dr. Etheridge states that he has experience in general practice, anesthesia and acute and chronic pain management, and has a special interest in musculoskeletal problems and practices interventional pain management in Montreal, QC and Kelowna, BC., being involved in doing part-time anesthesiology and interventional pain management. [14] There is a report from Dr. Patricia Neilson, a psychologist. Her report was dated December 2, 2011 and served December 8, 2011. [15] There is a report from Dr. Gordon Wallace, a vocational consultant. His report is dated February 15, 2012 and was served February 17, 2012. The first page of that report reads as follows: My name is Gordon Wallace and I have been requested by your office to offer an opinion in the rehabilitation psychology field.

For the Court's information, I hold a B.A. in Psychology (Simon Fraser University), a M.A. in Counselling Psychology (Simon Fraser University), and a Ph. D. in Clinical Psychology (Pacifica Graduate Institute). I am a Registered Psychologist licensed to practice in British Columbia and Alberta as well as a Registrant of the Canadian Register of Health Service Providers in Psychology. I am a member of the Canadian Psychological Association and the American Psychological Association (Division 22 - Rehabilitation Psychology). I have been working in the rehabilitation psychology assessment field since 1980 and have been accepted as an expert in this area by Courts in British Columbia, Alberta, Saskatchewan, Montana, Oregon, and Washington. In addition to my work in the rehabilitation psychology assessment field, I also have a psychotherapy practice. Attached, please find my curriculum vitae which outlines my qualifications in more detail. The purpose of this report is to assess Ms. Hove's residual employability potential. I am the person solely responsible for the contents of this report, the facts and assumptions herein having been based on my interview with the plaintiff, psychological and vocational assessment results, as well as documentation that you supplied. ... [16] The plaintiff delivered a report from Dr. Johannes Barnard, who has since 2003, been the plaintiff's family

physician. That report was dated February 6, 2012 and served February 28, 2012. [17] The plaintiff served four reports from Robert Carson, an economist, dealing with cost of future care, an income loss multiplier (one report plus an update), and a further cost of future care report. [18] Finally, a report from Dr. Paul Dooley, an orthopaedic surgeon, dated April 10, 2012 was served April 25, 2012; 33 days prior to the trial date and obviously after the 84-day deadline established by the Supreme Court Civil Rules (the "Rules"). [19] On May 16, 2012, just prior to the date set for commencement of the trial, Mr. Ross wrote to Mr. Weatherill. The body of that letter is as follows: We write to confirm that the Defendant will oppose any attempt by the Plaintiff to adduce evidence at trial with respect to injuries that she claims were caused by the accident, if they have not been pled in her Notice of Civil Claim (Statement of Claim). [20] As noted, the trial did not proceed on May 28, 2012, because there was no judge available. [21] The parties attended a case planning conference before me on August 7, 2012. As affidavit evidence is inadmissible at case planning conferences and was necessary in order to determine certain matters in issue, the case planning conference was adjourned and these notices of applications were set down for hearing. [22] At the hearing on August 28, 2012, I

granted the orders sought in the plaintiff's notice of application. [23] The further particularization of the injuries sought to be pleaded by the plaintiff were substantiated by the medical evidence placed before me. [24] I also granted the orders sought in Part 1, paragraphs 1, 2 and 5 of the defendants' notice of application. [25] In her affidavit, Valerie Werner deposes as follows: 17. The Defendants served the following expert opinion: (a) Dr. G.P. Connell, Radiologist, report on review of MRI imaging dated July 18, 2011 and served July 26, 2011, a copy of which is attached and marked as Exhibit "20".

18. Dr. Neilson treated the Plaintiff for driving anxiety and persistent pain and physical limitations related to the Accident. In her report of December 2, 2011, Dr. Neilson opined that the Plaintiff presented with driving related fears and that she expects the Plaintiff would continue to experience some degree of driving anxiety.

19. The Plaintiff is attempting to advance further claims of chronic pain, driving anxiety and psychological injury not previously pled in this Action.

20. Dr. Dooley assessed the Plaintiff and in his report of April 10, 2012, he opined that the MRI findings demonstrate a tear of the acetabular labrum anteriorly which was likely caused by the Accident.

21. The Plaintiff is attempting to advance a further claim of a labral tear to the left hip not previously pled in this Action ...

24. Following the adjournment, by letter dated June 6, 2012, a copy of which is attached and marked as Exhibit "22", Mr. Ross wrote to Mr. Weatherill advising as follows: (a) Arrangements were being made to for independent medical examinations; (b) The claim had become more complex given the now physical and psychological components of the claim including the Plaintiff's continued absence from employment; and (c) In consideration of the additional experts required to defend the new allegations and the increased complexity of the claim the Defendants' estimated trial length would be fifteen days (15) days.

25. The Plaintiff is attempting to amend her pleadings to advance new allegations that the Accident caused a [labral] tear in the left hip and psychological injuries. ...

31. The Plaintiff has not submitted to any previous Independent Medical Examinations to date.

32. The Plaintiff underwent an Examination for Discovery on October 17, 2011.

33. The complexion of this case has changed materially given the expert opinions of Drs. Dooley and Neilson and the Plaintiff's intention to further amend her Notice of Civil Claim to advance new allegations of physical and psychological injuries.

34. Plaintiff's counsel has provided numerous documents since the Examination for Discovery on October 17, 2011. The documentation is as follows: [(a) - (v) - 22 sets of documents] [26] Extracts from the examination for discovery transcript were produced. They confirm that this examination, conducted by previous counsel, commenced at 10:01 a.m. on October 17, 2011, and adjourned at 11:00 a.m. Following the last question and answer, defendants' counsel states: Okay. That's all I wanted to ask you. Subject to receiving any additional medical reports that might have me -- have some new questions, what we call a continuation, sometimes we'll do that if we get something between now and the trial date. But that would be the only reason I'd want to question you again, and then I can talk to Andrew [referring to Andrew Powell who was representing the plaintiff at that examination for discovery] and figure that out, if that's something that's necessary. These aren't always so short. Some people go through every last thing in your life. I am only concerned about the things that I think are relevant and pertinent, to get to your injury and trying to determine the quantum of it. I don't let the way in which I do these be guided by others, so I don't waste people's time. And the only reason I would want to question you again is if I get something new that's going to give me an angle to go

down and try [to] find it. My job is just trying to find a quantum amount lower than what you guys want. That's solely what I do, so -- which liability is not an issue, so pretty easy. All right. Thank you. I hope you feel better. The discovery was then adjourned. [27] In paragraph 18 of their notice of application, the defendants set out the following: 18. By email dated May 22, 2012, Cathy Cope, Paralegal to Gary Weatherill, lawyer for the Plaintiff delivered to Robert Ross, Lawyer for the Defendants, a Consent Order attaching [an] unfiled Further Notice of Civil Claim, wherein the Plaintiff is claiming new injuries as follows: a. Fibromyalgia/Chronic Pain; b. Labral tear to and pain on her left hip; c. Driving anxiety; and d. Psychological injury. [28] In fact, these claimed injuries had previously been referred to in reports delivered to the defendants' lawyers on or prior to March 2, 2012, which was 84 days before the originally scheduled trial date: Rule 11-6(3). [29] Fibromyalgia/chronic pain was referred to on pages 6 and 10 of the January 5, 2012 report of Dr. Travlos. Fibromyalgia was also referred to in the report of Dr. Etheridge dated July 20, 2011. [30] The labral tear was referred to in the January 5, 2012 report of Dr. Travlos at page 5. He refers to hip pain at pages 6 and 7 of that report. The labral tear was also referred to in the March 18, 2011 report of

Dr. Christian; although he considered it to be unrelated to the accident. [31] The driving anxiety and psychological issues are referred to in the report of Patricia Neilson, PhD., R.Psych., which according to Valerie Werner was served on the defendants December 8, 2011. Psychological issues are also referred to by Dr. Wallace at pages 4 and 5 of his report dated February 15, 2012. [32] Accordingly, it is obvious that the amended pleadings relate to evidence which had previously been disclosed prior to Mr. Watts filing the trial certificate. Apart from what I will call a "new" (perhaps better characterized as "different") opinion by Dr. Dooley on the probable cause of the labral tear, all of the evidence relating to the amended pleadings was disclosed at least 84 days prior to the scheduled trial date. [33] Plaintiff's counsel argued that the discovery should be restricted. Although I did not give reasons at the time, I granted the defendants' application to examine the plaintiff, placed no restrictions on that examination, and ordered that a further one day of examination for discovery of the plaintiff could occur. [34] My reasons for allowing a further day are as follows: 1) the examination for discovery was adjourned on specific terms; namely, provision of additional materials; 2) additional materials were provided; 3) the examination for discovery was very brief, and

although I have not reviewed the entire transcript because it was not placed before me, I felt that it may well promote settlement of this action if the defendants were given a further full day of examination for discovery; 4) Mr. Ross has assured me that he has no desire to go over matters already canvassed; and, most importantly 5) there does appear to have been a change in the nature of the evidence, particularly as it relates to a labral tear. [35] In his report dated January 5, 2012, Dr. Travlos, the physiatrist, writes: Ms. Hove's left hip pain has been further assessed with time. A second MRI scan with gadolinium done at Kelowna General Hospital in October of 2011 showed the presence of a small anterior inferior acetabular labral tear. She was treated with a shot of cortisone into the hip with six weeks' reduction in symptoms but after that, the symptoms returned. Her orthopaedic surgeon, Dr. Dooley, did not feel it was warranted to repeat the injection. Unfortunately, Ms. Hove continues to still have symptoms. [36] In Dr. Christian's report dated April 12, 2011, on page 9, he writes:

RADIOLOGICAL REVIEW I reviewed the MRI of the left hip from March 18th 2011. The report suggests a labral tear. I am not convinced that this lesion is present. A labral [tear] would not be expected as a result of this type of trauma and I would consider this to be an incidental finding and unrelated to the accident. [37] Dr. Dooley's report dated April 10, 2012 discusses the hip pain Ms. Hove is experiencing in considerable detail. On the second page of his report he writes: ... she reported no prior problem with the [hip], no significant injury at any point in the past and known childhood issues or any significant family history with respect to joint pathology. At my initial physical assessment Ms. Hove demonstrated very clear findings suggestive of both anterior and posterior impingement consistent with labral pathology. ... ... I deemed it appropriate to organize a magnetic resonance arthrogram to further determine the status of the intraarticular structures of the left hip as this is a more sensitive investigation than standard MRI which she had previously completed. Indeed this MRI was completed without complication and did demonstrate a tear of the acetabular labrum anteriorly. ... Given the significant benefit with the intraarticular injection of the MR arthrogram findings and the onset of her hip discomfort following the MVA it would be most likely that the labral

pathology was related to that event however the position of the labral pathology anteriorly and inferiorly is a little unusual given the seated position at the time of the impact. Despite this the significant energy involved at the time of the impact could result in complex injury pattern. [38] A penultimate paragraph of his letter is as follows: With respect to the current labral pathology I do believe that this condition will be permanent and perhaps progressive but again it is very difficult to determine rate of progression or extent for that matter. [39] Given these circumstances, it is appropriate that the plaintiff be examined for discovery for a further day. [40] The principles relating to the entitlement of the defendants to have the plaintiff examined by a medical practitioner or other qualified person are set out in Rule 7-6 of the Rules, in cases which have interpreted that Rule, and analogous provisions in previous iterations of the Rules of Court. [41] There has been no prior examination of the plaintiff by a medical practitioner or other qualified person retained by the defendants. [42] The trial of this matter was adjourned and no trial date has yet been set. The proposed examination of the plaintiff on November 1, 2012 by a physiatrist is appropriate, and the appropriateness of this was properly conceded by plaintiff's counsel, so that examination was

ordered. [43] In addition, the defendants sought to have the plaintiff examined by a psychiatrist. That triggers the principles involved in the interpretation of Rule 7-6(2) of the Rules. As stated by Master Bouck in De Corde v. De Corde, 2011 BCSC 1719: [37] The overriding principle is that an independent medical examination ought to be permitted if necessary to ensure reasonable equality between the parties in their preparations for trial. [44] This is a succinct summary of reasons of our Court of Appeal in Wildemann v. Webster, [1990] B.C.J. No. 2304, confirming that Rule 30(2), predecessor to Rule 7-6(2) of the Rules, is a discretionary rule. The discretion must be exercised judicially. There are other factors which I am to take into account. These have been set out in Hamilton v. Pavlova, 2010 BCSC 493, where Justice Bracken provides a useful summary of the applicable law in paras. 10-16 of his decision which I will not reproduce here. [45] The notices of application were argued on August 28, 2012. On that date, both of the counsel familiar with this matter, on behalf of the defendants, were engaged in a trial. A brief adjournment of the afternoon commencement of that trial was arranged to enable the notices of application to be argued. [46] The defendants' notice of application was, in my view, thorough and dealt with the relevant issues of law and facts. [47] It was

apparent that defendants' counsel, Mr. Ross, although he made his submissions in a way which dealt with the issues, felt rushed, and felt unable to make the submissions as thoroughly as he might have wished. [48] On September 14, 2012, four days prior to my attendance in Vernon to render judgment on the remaining outstanding issues from the defendants' notice of application, Mr. Ross, on behalf of his clients, filed an addendum to submissions. [49] Although nowhere on the materials provided to me does it indicate that this addendum was also provided to counsel for the plaintiff, I was advised that the addendum to submissions was provided to plaintiff's counsel. [50] I reviewed the addendum to submissions, including the additional argument respecting the test for what defence counsel referred to as "independent medical examinations" and also the submissions dealing with the appropriate expert given the fact that the initial application was argued while Mr. Ross was engaged in another trial, I felt that it was appropriate to review the addendum to submissions and determine whether the addendum required further submissions from plaintiff's counsel. [51] Plaintiff's counsel made brief responding submissions on September 18, 2012. Following those submissions, I dismissed the orders sought in paragraphs 3 and 4 of their application, with written reasons to follow. [52] The initial notice of application sought under the heading Part 1: ORDER(S) SOUGHT state: 1. The Plaintiff attend and submit to an Independent Medical Examination with Physiatrist, Dr. Michael Piper, on November 1, 2012, at 10:45 a.m. at #102 - 65 Richmond Street New Westminster, B.C.

2. The Defendants will pay the Plaintiff's reasonable expenses to attend the Independent Medical Examination with Dr. Piper in New Westminster, B.C. [53] That order was granted. Plaintiff's counsel did not oppose the granting of that order. [54] The addendum to submissions is as follows: 10. However, as the Defendants are making an initial request for an IME, the lower standard applied for rule 7-6(1), is the appropriate standard. [55] The application for examination by a psychiatrist is part of an initial request, but it is for a second medical examination. [56] Rule 7-6(1) of the Civil Rules refers to by "a medical practitioner" [Emphasis added]. That examination was ordered by me on August 28, 2012. [57] The application for a further examination is, therefore, a "further examination" under Rule 7-6. [58] A further amended statement of claim, amended pursuant to the order of Master Bishop granted February 22, 2011 and filed March 8, 2011, in paragraph 2, pleads amongst other things - severe headaches, throbbing in her head, sleep disturbance, and such other injuries as counsel may advise. [59] There are reports from two psychologists. One of the psychologists provided psychological therapy to the plaintiff in 2010. Her report, dated December 2, 2011 and delivered on the defendants on December 8, 2011, is a brief report (two pages, plus two lines on a third page) that

substantively concludes with the following: When last seen, Ms. Hove had made some gradual progress with regard to managing and reducing her driving-related anxiety. I am not able to provide an opinion regarding whether or not this condition is permanent. I would expect that Ms. Hove will continue to make gradual progress and improvement. However, given that her symptoms have persisted for approximately two years post-injury, I would expect that she will continue to experience some degree of increased driving anxiety. [60] The residual employability potential report of Dr. Gordon Wallace also contains some comments about psychological functioning and provides the opinion that Ms. Hove is in need of further psychological intervention. [61] These reports do not suggest that the plaintiff requires treatment by a psychiatrist. There is no indication of any psychiatric illness which has been caused or contributed to by this motor vehicle accident. There is no evidence before me to suggest that an assessment by a psychiatrist would be of any assistance to the defendants or the court in determining issues arising from this motor vehicle accident. [62] As noted, on April 17, 2012, one of the defendants' counsel filed a trial certificate. In that trial certificate he certified that he would be ready to proceed on the scheduled trial date of May 28, 2012. [63] It is apparent to me that

the psychological issues complained of, primarily driving anxiety and the psychological concerns referred to on pages 4 and 5 of Dr. Wallace's report, were known to the defendants approximately two months prior to the trial certificate being signed and over three months prior to the originally scheduled trial date. [64] The material filed does not set out any specific recommendation from a medical doctor in support of the examination being sought: Paterson v. Reeves, 2002 BCSC 1341, para. 28. [65] There is no indication of any psychiatric illness or injury. [66] Plaintiff's counsel has also stressed the fact that Ms. Hove wants to get on with the trial of this matter. She was injured in an accident for which liability has been admitted. The defendants, through their counsel, certified on April 17, 2012 that they were ready to proceed. At that time, they did not have Dr. Dooley's letter, and obviously that aspect of the plaintiff's claim (the connection between the injury and the labral tear sustained by Ms. Hove) is what has entitled the defendants to further discovery of the plaintiff. [67] The medical examination by a physiatrist, scheduled for November 1, 2012, will not result in any further delay of trial. However, the proposed examination of the plaintiff by the psychiatrist proposed for May 9, 2013, will significantly impact on when this matter can be reset for trial.

There will be delay occasioned by waiting for the psychiatrist's report. There will perhaps be the addition of witnesses, which will of necessity extend the length of trial. Given the availability of judicial time that may further delay the hearing of the trial. [68] There is a balancing of issues needed here. In determining whether or not to grant the application for a subsequent medical examination, I considered all of the factors, including the extent of the psychological issues, the fact that the defendants apparently were ready for trial based on the existing pleadings by April 17, 2012, the fact that the psychological issues had been raised at least two months before then, and the fact that the date sought for the medical examination by a psychiatrist was in May of 2013, which would delay trial of this matter likely until at least the fall of 2013; over five years after the accident. [69] In my view, the just, speedy and inexpensive determination of every proceeding on its merits does not require a medical examination by a psychiatrist scheduled for May of 2013. [70] The defendants' application for the relief sought in paragraphs 3 and 4 of its notice of application, to have the plaintiff examined in May 2013 by a psychiatrist, does not meet the test for a further examination and is dismissed. [71] I had previously ordered that costs of the application would be in the

cause and reiterate that provision of my order. [72] To summarize: 1) The application of the plaintiff and the orders sought in paragraphs 1 to 3 of her notice of application is granted; 2) The application of the defendants and the orders sought in paragraphs 1, 2 and 5 of their notice of application (examination for discovery restricted to one further day) is granted; 3) The orders sought by the defendants in paragraphs 3 and 4 of their notice of application are dismissed; 4) Costs of these applications are in the cause. "Master R.W. McDiarmid" MASTER McDIARMID