Experts in Vehicle Actions

Under BC Supreme Court Rule 11-8 Experts in Vehicle Actions, there is a limitation in the number of experts that may be retained in a vehicle action.  The limit under Rule 11-8 is 3 experts that may provide expert opinion evidence on the issue of damages at trial, and only 1 report from each of these experts that may be tendered at trial for claims over $100,000.

See rule change amendments noted below for further information.

Limitation on expert opinion evidence

(3) Except as provided under this rule, a party to a vehicle action may tender, at trial, only the following as expert opinion evidence on the issue of damages arising from personal injury or death:

(a) expert opinion evidence of up to 3 experts;

(b) one report from each expert referred to in paragraph (a)

This rule only applies to vehicle actions which according to the rules is defined as “an action that includes a claim for damages for personal injury, or death, that arises out of the use or operation of a vehicle as defined in the Motor Vehicle Act. If the ICBC case is in Court under the Fast Track provisions $100,000 and less, the limit is one expert and one expert report.

See Rule 11-8 (2)

This rule applies in the event of a conflict between this rule and another rule of these Supreme Court Civil Rules, other than Rule 15-1

Expert selection is of paramount importance.  Reviewing the injuries of the Plaintiff and determining which specialty is required to assist counsel and the court with a better understanding of the Plaintiff’s injuries, diagnosis and prognosis is a task for your counsel.

Clearly, legal strategy in selecting an expert is even more crucial under Rule 11-8.  A legal team must carefully consider multiple factors to ensure your choice of expert is suitable for the case.

Some of the factors that should be considered:

  1. Are there multiple injuries?  Identify all the Plaintiff’s injuries caused by the motor vehicle collision.
  2. Is the injury subjective or objective.  This will assist with narrowing down the type of expert that may be required.
  3. The complexity of the injury; This may assist with determining whether you require a “Cadillac” or “Buick” expert.
  4. Ensure you are working with a reputable service provider that is able to provide support and guidance on expert selection.
  5. Seek the CV of the expert for your review;
  6. Request a sample report of the said expert for your review;
  7. Discuss the process of the assessment that will be undertaken eg: how long will the review/assessment with your client take.
  8. Research your expert to review his/her attendance at Court and review any and all cases in which the expert may have been involved in to determine whether the said expert’s opinion was accepted in Court, and if not, review the specific reasons why the said experts evidence may have been discounted.
  9. Ensure you have sought all relevant records for the expert and that all relevant information is provided so that any report provided is not challenged. Seeking a full history from your client is really important to ensure you are disclosing any pre-existing injuries that may exist.

The importance of expert selection is to assist counsel and the Court at trial.  This is a very important quote which is taken from the following article:

Expert Selection – Disbursements

“the onus of proving liability and quantum in the proceeding rests upon the shoulders of plaintiff’s counsel. Further, to properly advise the plaintiff with respect to the range of possible outcomes for the case and to consider the reasonableness of settlement offers, plaintiff’s counsel is required to determine the extent of the plaintiff’s injuries and to understand the cause of them.” See Turner v. Whittaker, 2013 BCSC 712 (CanLII) at para. 51.

Also, be mindful that the expert report must be carefully reviewed for a number of reasons, but here are some points outlined in the following article:

Objections to the Admissibility of a Medical-Legal Report

  • fails to clearly set out the facts and assumptions relied on
  • fails to clearly set out the opinion given
  • includes improper commentary on the credibility of the plaintiff
  • is argumentative and speculative, and
  • is more akin to the work product of a confidential advisor than an independent expert.

In this recent decision referenced as Liu v. Zhang, 2019 BCSC 778 (CanLii) a report was tendered by the Plaintiff from a treating psychologist. Unfortunately there were a number of matters raised by the Court that rendered the report of “minimal” use.

The focus going forward is to ensure you are taking the time to match the expert to your client and your client’s case.

Liu v. Zhang, 2019 BCSC 778 (CanLii)

[28]         Dr. Du is a psychologist registered to practice in British Columbia and provided a report dated July 28, 2018 which was exhibited at trial. Dr. Du had seen Ms. Liu for four sessions between April and July 2018.

Dr. John Du

[29]         Dr. Du testified that he was qualified to practice in psychology, but he was not qualified as a psychiatrist in Canada and was unable to prescribe medications. He advised he was not provided any materials including Dr. Leong’s clinical records or reports and his report was based solely upon the narrative provided to him by Ms. Liu. He testified to having been qualified as an expert on six or seven previous occasions.

[30]         Significantly, Dr. Du stated in his report which was directed to plaintiff’s counsel:

Under your request I have prepared this report. The purpose of this report is to summarize my psychological treatment with Ms. Liu, and based upon my direct clinical work with her, to discuss issues of her diagnosis, impairment of function, contributing factors of her psychological difficulties, prognosis, and care needs.

Please note that the following is a summary of my impression of her psychological issues based on my work with her in a therapeutic context. This is not an independent psychological-legal opinion.

[Emphasis added.]

[31]         The underlined portions, “not an independent psychological-legal opinion”, are capable of two interpretations – one which if found would render the report inadmissible. The phrase could mean that Dr. Du’s report was not prepared following an independent medical examination. Alternatively, the phrase could mean Dr. Du was not impartial or independent in drafting the psychological-legal opinion.

[32]         His report was admitted by agreement of counsel subject to deletion of one sentence. Although Dr. Du was trained in psychology, he agreed in his report that he could not be completely objective and realized potential bias. Based on Dr. Du’s own testimony that he could not be fully objective and had potential bias, I take his statements to mean the latter of the two available interpretations.

[33]         Dr. Du is not a properly qualified expert and his opinion is not admissible. Under White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 [White Burgess], the Court considers an expert’s bias and impartiality at the qualification stage. Dr. Du has agreed that his report could not be completely objective and realized potential bias. Even though the parties agreed to the introduction of the report, the Court must uphold its gatekeeper function: White Burgess at para. 20.

[34]         Even in the event that I found Dr. Du was qualified to give expert evidence and his report admissible, I would give his report little weight. He says his report is based solely on the narrative provided by Ms. Liu. As I discuss below, I found Ms. Liu’s narrative of her injuries to be exaggerated. The conclusions in an expert report are only as accurate as the factual foundations and assumptions on which the expert’s analysis is based. Ms. Liu’s inaccurate reporting calls into question the accuracy of the report’s factual foundations, analysis, and conclusions. The medical conclusions in the report would be of diminished weight due to the skewed factual foundation from which those conclusions flow.

[35]         As a result of the above, I find the report and testimony of Dr. Du to be of minimal assistance.

Expert Evidence

I also think its worth noting the courts comments in a decision from Alberta in which we wrote about entitled “Minor Injury”, “Serious Impairment” and “Fibromyalgia” – Learn More

The Court’s comments regarding expert selection / expert evidence were noted in a Borden Ladner Gervais article dated June 8, 2016:

Of particular interest to insurers and defence counsel in this case, is the court’s comments with respect to expert evidence of the defence Certified Medical Examiner (“CME Expert”). On cross-examination, the Court found that the CME Expert based his opinion on a medical model — not the definitions in the regulations. The Court noted that in 15 years of assessing strains and sprains, he had never found someone who had suffered from a “serious impairment”. When the legal interpretation of the MIR definition was put to him, he noted he was aware of the definition in the regulations but he had a different way of conducting certified medical examinations.

The court ultimately rejected the opinion of the CME Expert. The court urged him, and other doctors performing Certified Medical Examinations pursuant to the MIR, to be educated on the law as it applies to them. The court noted that these types of medical legal reports are relied on by insureds and injured parties, and they need to be accurate due to the potential for significant financial consequences.

The court also found that the evidence of the other defence experts was seriously compromised on cross-examination, largely due to vague statements in the reports and a failure to consider the plaintiff’s most recent medical records.

The total award granted to the plaintiff was $282,683.65, plus interest and costs.

This case is a prime example of the evolution of the chronic pain case law in Alberta, and the importance of independent and reliable expert evidence. It also highlights the importance of expert evidence in chronic pain cases and considering those risks before proceeding to trial.

Rule change amendments as per Ministry of Attorney General’s office

For Immediate Release
March 25, 2019
Ministry of Attorney General
Rule change amendments to ease impacts for existing motor vehicle court actions

VICTORIA – Effective immediately, amendments have been made to changes to court rules that were implemented earlier this year.

On Feb. 11, 2019, David Eby, Attorney General, announced changes to the B.C. Supreme Court Civil Rules. These changes were designed to reduce legal costs and increase efficiency in motor vehicle litigation by limiting the use of adversarial expert evidence and encouraging the use of neutral court-appointed experts and experts shared by the parties.

Cabinet approved further amendments to court rules on March 22, 2019, providing an increased transitional period for the implementation of the changes announced in February.

These amendments are meant to minimize the impact of the new court rules on cases before the courts. Rule 11-8(11) exempts parties to a motor vehicle action from the limit on adversarial experts in Rule 11-8(3) if the trial date is on or before Dec. 31, 2019. It also permits those same parties who incurred costs for necessary experts prior to Feb. 11, 2019, to recover those expenses.

Learn More:

Limiting use of experts to reduce costs, delays in motor vehicle disputes:

Ministry of Attorney General
778 678-1572

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