IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150211

Docket: M148707

Registry:
New Westminster

Between:

Robert John Van
Rhyn

Plaintiff

And

Baldev Khabra

Defendant

Before:
Master Muir

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: This is an application, brought on short leave by the
defendant, for the plaintiff to attend a defence medical examination tomorrow with
Dr. Medvedev. Dr. Medvedev is a neurologist.

[2]            
The claim arises out of a motor vehicle accident which occurred on September 23,
2011. The plaintiff was injured when his motorcycle collided with the defendant’s
motor vehicle. Apparently, counsel for the defendant recently assumed conduct
of this file. It is submitted that counsel for the defendant reviewed the
transcript from the examination for discovery when they assumed conduct of the
file and saw no reason to retain a neurologist. However, when the defendant was
served the plaintiff’s expert’s reports two days before the 84 day deadline
that changed. Upon review of the reports, the defendant requested that the
plaintiff attend a neurological assessment with Dr. Medvedev.

[3]            
Counsel for the defendant says that Dr. Ancill, the plaintiff’s psychiatric
expert, has extensive knowledge of concussion and brain injuries. The court was
referred to Dr. Ancill’s Curriculum Vitae which shows that, since
1998, he has had considerable experience with assessment, diagnosis, and
treatment of persons with consequences of head trauma.

[4]            
Counsel for the defendant further submits that the defendant’s psychiatrist,
Dr. Robertson, does not have the same specialization in head trauma as Dr. Ancill.
Counsel for the defendant wished to refer to Dr. Robertson’s Curriculum
Vitae, but the plaintiff objected to it on the basis that it was only
provided this morning and was not in the application materials, although it
should have been anticipated it would be required. As a result, I did not accept
Dr. Robertson’s Curriculum Vitae in evidence.

[5]            
Counsel for the defendant says that in order to produce a proper responsive
report to Dr. Ancill’s assessment of the plaintiff’s injuries based on the
concussion and head trauma, the defendant requires the expert evidence of a
neurologist.

[6]            
However, there is no evidence from either Dr. Robertson or Dr. Medvedev
that Dr. Robertson’s qualifications are insufficient, that he is unable to
respond to Dr. Ancill’s psychiatric report, or that there is a need for a
physical examination by Dr. Medvedev.

[7]            
As to the defendant’s assertion that the plaintiff’s alleged head trauma
and concussion are recent developments, counsel for the plaintiff points to the
records of both ICBC and the Royal Columbian Hospital, which clearly show that
the plaintiff had suffered a closed head injury with a concussion and that these
were disclosed to the defendant.

[8]            
Counsel for the plaintiff further points out that the plaintiff gave
evidence in his examination for discovery regarding the following:

a)    his depression and
anxiety,

b)    his headaches
following the accident,

c)     neurological
symptoms,

d)    a CT scan of his
head was performed at the Royal Columbian Hospital, and

e)    a second CT scan
had been subsequently ordered.

[9]            
In the circumstances, I agree with the plaintiff that there has
been no sufficient evidence to establish a basis for the need for this
neurological examination, either in support of a responsive report or at all.
As far as I can see, there have been no exceptional circumstances or change in
the plaintiff’s condition that warrant a neurological examination.

[10]        
The cases relied upon by the plaintiff are well in support of my
conclusion that the application should be dismissed, and I will order that
the plaintiff have his costs in the cause.

“Master Muir”