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Medical Exam of Car Accident Claimant Denied-Personal Injury Lawyers Can No Longer Hand up Written Arguments to the Court


In this injury claim ICBC was denied a medical examination of the claimant(Labrecque v. Tyler, 2011 BCSC 429).  This personal injury lawsuit  arises  from injuries allegedly suffered in three motor vehicle accidents.  All three lawsuits are subject to Rule 15-1 of the SCCR, also known as Fast Track Litigation. The last  accident was the subject matter of this particular court application. It is alleged that the accident aggravated injuries suffered by the claimant in the first and second accidents.
In accordance with the civil rules of court the parties to this personal injury claim were obliged to serve any expert reports 84 days before trial. Three weeks after the expiry of this deadline the insurance company lawyer advised the claimant’s lawyer that a medical examination had been scheduled for the purpose of a response report. The claimant refused to submit to the medical examination, resulting in this court application.
Master Bouck concluded  that such attendance was neither required nor justified on the evidence presented.  Similar applications have been considered by the court in the following cases:  Wright v. Bauer, 2010 BCSC 1282; Luedecke v. Hillman, 2010 BCSC 1538; Boudreau v. Logan (December 19, 2010), New Westminster M120748 (B.C.S.C.); and Crane v. Lee (September 16, 2010), New Westminster M1000793 (B.C.S.C.).
Wright v. Bauer, injury claimant not required to attend medical exam, is the first reported decision which addresses the purpose of new response reports Rule 11‑6 (4).
In this personal injury case the evidence from the insurance company doctor as to the necessity for an examination was lacking. the court found that  even if the doctor’s evidence does provide the necessary justification, the prejudice to the injury claimant in attending an examination outweighs any prejudice to the defence in denying the order sought.
A car accident litigant  who takes no timely steps to exercise its rights under the rules does so at its peril.
In addition to the notice of application, defence counsel provided the court with a separate outline of argument. No objection was to taken to the court receiving this written argument. For the following reasons Master Bouck did not consider the content of the written argument in his deliberations:

“[47] Prior to July 1, 2010, provision of a written argument was recognized as good practice and often encouraged by the court — even for applications consuming less than 2 hours.

[48]  Since July 1, 2010 and pursuant to Rule 8-1(16), a written argument may only be presented to the court if the application consumes more than two hours. There is no discretion under the Rule to receive written argument in other circumstances. This application was estimated to be heard in 35 minutes but took one hour.

[49]   Thus, no written argument can or should have been considered by the court.” Posted by Mr. Renn A. Holness

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