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Personal Injury Claimant Trumps Medical Expert Testimony

Medical Experts
The Supreme Court of BC awarded this chronic pain claimant $115,000 for pain and suffering but complained about the manner of calling the expert evidence in this personal injury trial.
After the injury claimant commenced her evidence on the first morning of the trial, a medical expert was called as a witness the first afternoon.  Another medical expert was also called the following morning, the second day of the trial.  The evidence of the claimant then continued, and the evidence of the first expert was completed later in the trial, it also being interrupted.

It would not have been possible to have concluded the evidence of the claimant in a half day so the judge requested that no further witnesses be scheduled until after the claimant’s evidence was complete in direct, cross-examination and re-direct. (Rutter v. Adams, 2016 BCSC 554). Judge Watchuk explained her ruling in this way:

[217]   While I do appreciate the necessity for courtesy to the busy and often over-worked professionals who are the expert witnesses, the orderliness of the trial proceedings should take priority.  When an expert witness accepts the important task of providing a report, the witness is aware that attendance in court is possible.  Pursuant to Rule 11-6(9) of the Supreme Court Civil Rules, the witness is notified by counsel in advance of the trial date.  Subject to any last minute emergencies, it is then incumbent on the witness to attend at a time that facilitates the orderly calling of the evidence…

[215] Generally, and particularly in personal injury cases, it is preferable that the plaintiff testify first.  Not only is the plaintiff’s evidence important on its own, it is the framework or foundation for assessing the evidence of each witness that the plaintiff may call.  A trial is much more than simply creating a record.  It is the best opportunity for the trial judge to absorb the evidence and begin the analysis of the evidence.  The orderly calling of the witnesses is crucial to the ability to consider and analyze.  Sequence matters.  It is very difficult to understand the evidence as a whole if the plaintiff’s testimony is preceded by or interrupted by an expert or other witness.

Despite the order of the witnesses the Court was able to conclude that the claimant suffered a significant injury and loss. There were  physical and emotional effects of the injury and the physical effects on her neck and low back are likely chronic.

The claimant was disabled for four months. Taking into account the evidence in the case the judge awarded the following damages:

Pain and Suffering $115,000.00
Loss of Past and Future Housekeeping Capacity $4,000.00
Past Income Loss $11,328.53
Loss of Opportunity $30,000.00
Loss of Future Earning Capacity $0.00
Cost of Future Care $102,764.00
Damages in Trust $14,000.00
Accelerated Depreciation and Loss of Use $2,500.00
Out of Pocket Expenses $22,639.10
TOTAL: $302,231.63
 

Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

Tags: Expert Opinion, icbc case examples, Pain and Suffering, Rule 11-6(9) Notice of trial date to expert, Rules of Evidence

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