Court Allows Disbursement For Medical Report Claimed As Privileged

In White v. Reich, the Plaintiff was injured in a motor vehicle collision, and brought an ICBC claim for several heads of damages, including pain and suffering. At some point in the litigation process, Plaintiff‘s counsel obtained a medical report to substantiate the Plaintiff‘s injuries. However, the report did not turn out to be that favorable to the Plaintiff after all, and consequently Plaintiff‘s counsel claimed privilege over the report. The matter settled prior to trial, however ICBC’S lawyer later argued that the expense was an unreasonable disbursement under the circumstances. The Court rejected this notion, however, ruling that it was reasonable to have explored the issue in the first place.

[19] The applicable legal principles were canvassed and summarized recently by Master MacNaughton in Turner v. Whittaker, 2013 BCSC 712 at para. 5. In particular it is noted that the test is not one of hindsight and that a proper disbursement may be one which is ultimately not necessary but which was reasonably incurred for the purposes of the proceeding.

[20] In this regard, counsel for the defendant acknowledged that if the report had determined that the most recent heart problems had been caused by or contributed to by the accident and that that was the cause of the plaintiff’s being unable to return to work, there would be no question that the report was not only reasonable and proper but in fact necessary to the proper conduct of the litigation.

[21] In all of the circumstances, I am of the view that the course of investigation with Dr. Isserow, which culminated in and included his report, was reasonable and proper at the time that it was undertaken and accordingly the disbursements which relate to Dr. Isserow are allowed as presented.

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