Trial Adjournment Granted On Basis Of Uncertain Prognosis

In Gee v. Basra, the Plaintiff was injured in a motor vehicle accident, and subsequently sued for damages. Liability was admitted on behalf of the Defendant by ICBC’S lawyer.

 

Within a week of the start of trial, counsel for the Plaintiff brought an application to adjourn the trial, based on the uncertain prognosis of the Plaintiff. The Plaintiff alleged to have been suffering from chronic pain and headaches, which affected her ability to work. Counsel for the Plaintiff sought an adjournment so that the Plaintiff could undergo a series of Botox injections in an effort to alleviate her headaches symptoms, with such treatment being recommended by the Plaintiff’s neurologist. The Plaintiff would not be in a position to do this before the commencement of trial.

 

The Court took note of the fact that the application was brought very late in the proceedings, considering that trial was set to start in less than a week.

 

The Court was left with having to balance the interests of justice in determining whether to allow the adjournment or not. Although the Court noted that there was prejudice to the Defendant’s in not having the matter proceed, this prejudice was outweighed by the prejudice that would be caused to the Plaintiff if she did not have the opportunity to undergo the recommended treatment, and thus be able to assess its results.

 

The Court granted the adjournment, but on the conditions that the Defendant was entitled to some throw away costs, a further independent medical examination, and a further half day of Discovery.

 

[17] In plaintiff’s counsel’s affidavit, she deposes at paras. 5 and 6:

 

The plaintiff took time over the Christmas holidays to consider treatment options and in January of 2016 began making efforts to receive Botox injections. The earliest appointment date she was able to obtain was March 10, 2016. The current trial date does not allow the plaintiff to pursue treatment recommendations of her doctors.

 

[20] I conclude that this is not a situation similar to Sidoroff. All questions affecting the justice of the case will not be before the trial judge. He will not know whether Botox is effective to ameliorate the headaches. The judge will not even be able to have estimates of the chance of the Botox working. No such evidence is in the materials, and in fact in the passage I previously cited from Dr. Spacey, she cannot fully comment on prognosis until the plaintiff has undergone a trial.

 

[21] That prejudice caused to the plaintiff if she cannot undergo the treatment and assess its results significantly outweighs prejudice to the defendants, who, as noted, have admitted liability. The prejudice to the defendants can be ameliorated largely in costs.

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