IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120208

Docket: M091815

Registry:
Vancouver

Between:

Chella Turnbull

Plaintiff

And:

Narjes Yarnohammadi

and Honda Canada Finance Inc.

Defendants

Before:
Master Baker

Oral Reasons for Judgment

In Chambers

February
08, 2012

[1]
THE COURT:  This is an application for an order directing
the plaintiff,  Ms. Turnbull, to attend on an independent medical
examination with Dr. Dost, a neurologist.

[2]
In support of that is the affidavit of Dr. Dost, some 14 paragraphs
long.  It should not be taken as overly pejorative when I say that as an
affidavit it is becoming a fairly pro forma response to the concerns of
the court in the Wright v. Brauer ,2010 BCSC 1282, a decision of
Mr. Justice Savage.

[3]
However, having said that it is approaching pro forma, that does
not mean that it is without value or that the contents should not be regarded
with some respect.

[4]
There are enough sins in this case to go around.  Mr. Fedora is
correct when he describes a circumstance where, in my respectful view, what
used to be resolved and defined by pleadings, intended to put parameters and
boundaries around a dispute, has become in this area of the law, possibly, a
practice whereby the dispute and the claims are really defined by the medical
reports.

[5]
That has always been the case to a degree, but it is becoming more and
more the circumstance where the case is couched in wide and general pleadings,
leaving the real focus to be developed by medical reports.

[6]
I do not take any exception to Mr. Fedora’s comments that the pleadings
as they stand, by which I mean paragraph (6) of the Notice of Claim,
subparagraphs (a) through (s) , as he says, describe injuries literally head to
toe, from the “head down to the feet”,  including most body parts in
between.   Dizziness, fatigue, headaches, poor concentration, shock,
and here is the kicker, “…such other injuries and conditions as will be
particularized in medical reports as they become available”, which essentially
assigns to the medical reports the role of pleadings.  There it is.

[7]
I have a lot of sympathy with the party dealing with pleadings on that
order.  It would not be a surprise to hear that that party would wait
until he or she receives the medical reports and then he or she knows what the
case is about.

[8]
I am depressed to think of that being the practice, because it seems to
be more and more the case.

[9]
But, anyway, the defence says that it could not reasonably have
anticipated the neurological aspects, particularly those described by Dr.
Salvian, until it received reports on or about January the 3^rd, I
think it was, and again, on or about the 84-day deadline prescribed by the
Rules.   The say that it was that turn of events that focused the
dispute onto certain aspects, at least, of the damages claimed by Ms. Turnbull:
thoracic outlet syndrome, carpal tunnel, for example, and that it is in response
to that analysis and the opinions of Dr. Salvian that Dr. Dost must now examine
her in reply.

[10]
I do not agree with that.

[11]
I think this case is very close to, if not on all fours with, Master
Bouck’s decision and analysis in Labrecque v. Tyler, 2011 BCSC 429, and
in particular, Judge Macaulay’s succinct decision in Gregorich v. Gregorich,
Victoria file 094160 dated, it looks like, the 16^th of December,
2011.

[12]
I am of the view that nothing substantial contained in the reports in
early January, and particularly the report of Dr. Salvian, should have
surprised the defence.

[13]
Dr. Salvian was consulted and gave a report which became part of the
clinical records of the family doctor, Dr. Murphy.  The clinical records,
including that report, were made known to the defence long ago.  In fact,
Dr. Salvian’s, I will call it report number one, which was dated 2010, was
listed in the plaintiff’s list of documents in April of 2011.

[14]
In that report it is clear that Dr. Salvian, if he did not very
specifically diagnose carpal tunnel syndrome or thoracic outlet syndrome — and
I do not decide at this point whether he did or he did not — made it absolutely
clear, at least to me, that that was a significant factor in his mind.

[15]
 On the last page of his report, page 20, he
says:

In any event, it is my opinion
that the carpal tunnel syndrome and the post-traumatic thoracic outlet syndrome
and the soft tissue injury of the neck are directly caused by the flexion
extension injury, …

He then talks a little more about spontaneous carpal
tunnel syndrome.

[16]
I also agree with Mr. Parsons that his latter report does not add
significantly to that, not in such a fresh way that would justify surprise on
the part of the defence.

[17]
That being the case, I take Mr. Parsons at his word, and I agree it
would have been perfectly appropriate had at some point before the 84-day
deadline the defence requested an IME to deal with Dr. Salvian’s perspectives;
that would have been appropriate.

[18]
To wait after that point is to — as I think one authority, perhaps Mr.
Justice Macaulay used the phrase — “shoehorn” the opinion into a compacted,
truncated chronology, i.e., the 42-day limit for a responsive report, when, in
fact, it should have been anticipated well in advance of that and it should
have been subject to the same 84-day rule.

[19]
Again, nothing in this precludes the defence from delivering a
responsive medical report.  It is just as in the Gregorich case, I
do not see that it is necessary to do that to direct the independent medical
examination.

[20]
So the application is dismissed.

MR. PARSONS:   Costs in the cause, Your Honour?

 MR. FEDORA:  That’s agreeable.

 THE COURT:  Yes.

“D.
Baker, M.”