04 Feb Alleged Sexual Assault Not Relevant to Adjournment Application
The personal injury case of Singh v. Chad, 2018 BCSC 1860, involved an adjournment application by the Defendants, with an unusual twist. The primary reason the Defendants sought an adjournment was that they found out a few months before trial that the Plaintiff alleged she had been sexually assaulted prior to both motor vehicle accidents.
As a result of that disclosure, the Defendants sought an adjournment in order to add the alleged assailant to the action, have a psychiatric expert consider the impact of the alleged sexual assault on the Plaintiff’s claims and to have full disclosure regarding the alleged sexual assault so as to locate any additional witnesses.
The Plaintiff did not disclose that she had been sexually assaulted until 2018. The particulars of the incident were that a friend tried to force himself on her. She rebuffed him and later, after he explained himself, accepted his apology. She did not tell anyone or do anything about it. It was not until a few months prior to trial that the Plaintiff mentioned the incident and this information was included in a psychiatric report that was served on the Defendants.
After receiving the report, the Defendants scheduled a further examination for discovery of the Plaintiff. At that discovery, the Plaintiff gave evidence that:
- She attended no medical doctors following the assault;
- She did not report the assault to the police;
- She was upset by the event, but not traumatized;
- She did not tell anyone about the assault prior to 2018;
- She did not see a lawyer about commencing civil proceedings against the assailant; and
- She did not lose any time from work from the assault.
It was the Judge’s view that the circumstances in this application were novel. Neither party’s counsel were able to point her to any other case where a Defendant in a motor vehicle action sought to add to the proceeding a third party who was alleged to have sexually assaulted the Plaintiff several years before the motor vehicle accident.
The Judge noted that when the Plaintiff sought damages for injuries sustained in a motor vehicle accident, she waived her rights to privacy in respect of those claims for injuries suffered in those accidents. She could expect to be questioned on the injuries and the impact on her life. She could expect to be examined on her work, her relationship with her husband and family, and impact on her activities prior to and following the accidents. But to force her to participate in an action against an alleged perpetrator of a sexual assault, when she did not wish to do so, was a significant violation of her right to personal dignity and right to privacy.
The Judge held that it would be highly prejudicial to the Plaintiff to adjourn the trial on the speculation that the Defendants may be successful in obtaining leave to add the assailant as a third party.
With respect to the Defendants assertion that they needed an adjournment so that they could obtain expert psychiatric evidence of the impact of the alleged sexual assault, the Judge noted that the Defendants had psychiatrists retained who had already assessed the Plaintiff. If the Defendants wanted to have their psychiatrists respond, they could have done so. As such, that was not a basis to adjourn the trial.
The Defendants also wanted an adjournment so they could obtain further witnesses. However, the evidence was that the incident occurred in a hotel room with only the Plaintiff and the assailant present. It was not clear to the Judge what additional information the Defendants were seeking that would result in the need to call further witnesses about the incident. In the Judge’s opinion, this was not a basis to adjourn the trial.
The Judge dismissed the Defendants’ application to adjourn the trial and awarded the Plaintiff costs.