In Norris v. Burgess, the Plaintiff was injured in two motor vehicle accidents, and the actions were consolidated at trial. Liability for both accidents was admitted by ICBC’S lawyers.
During the litigation process, the Plaintiff was examined by a psychiatrist on behalf of the Defendant. However, ICBC’S lawyer elected not to produce an expert report of the psychiatrist, and also elected not to call the psychiatrist as an expert witness.
During the trial, which was by judge and jury, ICBC’S lawyer objected to the Plaintiff testifying as to her attendance at the psychiatric examination, as well as the surrounding circumstances. Counsel for the Plaintiff sought a ruling by the Court that the Plaintiff could testify, on the basis that her testimony was relevant to show that she had not exaggerated her injuries, and on the basis that an adverse inference could be argued during closing argument by the fact that the psychiatrist was not called as a witness, nor was any report produced.
ICBC’S lawyer argued that it would be highly prejudicial to allow the Plaintiff to testify about the independent medical examination, as the jury would draw an adverse inference due to the fact that no expert report was produced, nor did the psychiatrist testify.
The Court would rule that the Plaintiff was at liberty to testify, commenting that :
[13] As Rule 7-6 of the Supreme Court Civil Rules contemplates, an individual medical examination may be ordered where the “physical or mental condition of a person is in issue”. In this case, the independent medical examination was not pursuant to a court order. The Rule, however, illustrates that an independent medical examination will usually occur only where there is a physical or mental condition in issue.
[14] The plaintiff’s medical condition is clearly in issue. Where the defence asserts that the plaintiff may have exaggerated her injuries, steps taken by the plaintiff at the request of the defence may be relevant.
[16] Civil litigation is adversarial and litigant-driven. Where one party asks that the other party attend an interview or examination with a third person (whether or not that person is an expert) and the other party so attends, the requesting party should not be surprised that the interview or examination may be relevant with evidentiary consequences, including the possibility of an adverse inference. An unwanted but foreseeable consequence does not give rise to unfair prejudice.
