Introduction

The opinions of experts are a fundamental component in properly developing the personal injury case for the plaintiff or defence. In our practice at Webster & Associates we focus on catastrophic injuries, mainly brain injuries. It is not uncommon to have upwards of 10 experts involved in preparing the case for trial. Many of these are medical or quasi-medical and vocational but also often include labour economists and reconstruction engineers in British Columbia and elsewhere.

This paper draws on our experience litigating these complex and traumatic personal injury cases, with a focus on the following:

• Who is an Expert?
• Formal Guidelines for the Expert to Follow
• Rule 40A in British Columbia
• Section 53 in the Ontario Rules
• The Rules to ensure the expert opinion is admissible (or conversely objections which will keep it from ever becoming evidence).
• Disclosure of the Experts File
• Interviews of Experts by Opposing Counsel and the Rule of Privilege
• Comments on Two Specific Types of Experts (Cost of Care, Vocational)

Who is An Expert?

An expert is someone who has special knowledge that may assist the trier of fact in making decisions about facts in a case.

“It is thought that in some cases expert evidence is simply evidence of a fact which cannot be received by an untrained person. An expert who looks through a microscope and identified a bacteria cell is perceiving a fact no less than the man who sees a robbery committed under his eyes. The difference is only that the expert is conversant with microscopes and microbes.” J.H. Buzzard, R. May, M.N. Howard, Phipson on Evidence (London: Sweet & Maxwell, 1976).

Experts may be retained at the beginning, middle or conclusion of the plaintiff’s case. Experts may be retained by the client for the dual purpose of assisting the plaintiff in:

• active rehabilitation or treatment and/or assessment of the client at a particular point in time;
• to give evidence in court concerning their opinions and the exercise of their professional judgment at the time or times of their involvement;
• or both.

In other contexts, experts may investigate crashes or predict future inflation. Experts may take facts as they are given to them; hypothetical questions which they answer; or, they may investigate/assess to determine the facts, then provide an opinion.

The opinions of experts on the plaintiff’s current level of need and predicted need in the future are critical components in establishing how much financial compensation the plaintiff needs and is entitled to. The Court cannot award compensation for many of the plaintiff’s future needs without solid expert opinion on the precise level of the plaintiff’s present and future state of injury or function. Crafting a solid written and oral expert opinion is therefore crucial, and will be discussed in more detail below.

The level or stage of the plaintiff’s rehabilitation and recovery is a significant factor in the decision to retain an expert. Experts are retained for many reasons. In the medical legal personal injury context, they may be retained to complete an initial assessment and recommendations, to carry out the recommendations of another expert, to provide treatment, to complete a final assessment or a combination of these reasons.

In cases where we become involved early in the rehabilitation process, we usually retain experts who may participate for years throughout the course of the client’s recovery, rehabilitation, plateau and finally trial. In other cases, one may require a single assessment after the client has plateaued for the purpose of determining a permanent level of impairment and providing recommendations to assist the plaintiff for a lifetime based on stated assumptions concerning the client’s goals and needs.

In the context of occupational therapy, for example, an expert may be retained early on to assess the client with a view to overseeing and coordinating the rehabilitation efforts in the role of case manager throughout the course of the case. In this instance, the occupational therapist will likely be asked to exercise his/her expert judgment in implementing supports to increase the client’s function based on her consultation with various other treating medical professionals. He or she may be asked to access his or her pool of contacts to hire a life skills worker, or specialized therapists to assist the client with his or her needs and goals. Further, an occupational therapist, rehabilitation nurse, or certified life care planner may be retained closer to trial to prepare a “cost of future care report” or “life care planning report.” This expert may or may not have participated in the client’s rehabilitation, and may be asked to conduct a final assessment of the client, in light of the client’s rehabilitation background and on the basis or medical opinions provided, make future recommendations. Item by item these recommendations are considered, valued and together form the basis of a final award for costs for future care.

As with an expert occupational therapist for example, vocational consultants as experts may be retained for a wide range of roles in the litigation process and also may be involved at various stages from rehabilitation to trial. Depending on the client’s level of function, one or more of a spectrum of avocational to vocational goals may be appropriate.

It is possible the expert opinion may be required to assess and identify a component of the plaintiff’s level of function with a view to establishing compensation of the plaintiff for that identified loss through the litigation process. It is therefore important that the expert have a basic understanding of the legal tests used by courts in determining whether an expert’s recommendation for future care needs or competitive employability, for example, are supported in law. The rules applicable are those which govern the admissibility and acceptance of what the law considers expert opinion. Clearly, the expert is responsible for learning what legal tests to apply.

Formal Rules for the Expert to Follow

An expert opinion is the proper legally admissible opinion of the expert. It must follow a number of rules and guidelines which, once you consider them, may appear self evident but are frequently bent, strained and broken. The basic guidelines are:

• Clearly state expert qualifications
• Clearly state and identify what is your opinion
• State the underlying facts and assumptions underpinning the opinion
• Avoid argument and speculation and biased or inflammatory language
• Avoid giving opinion on issues outside your area of expertise
• Avoid giving opinion that does not require your expertise to give.

In B.C., Rule 40A of the Rules of Court governs the admissibility of opinion evidence.

Rule 40A in British Columbia

Rule 40A of the Rules of Court and the case law interpreting this rule give some guidance to what will be admitted as opinion evidence at trial. Since its introduction on August 30, 1993 Rule 40A has provided a complete code governing the procedural aspects of the provision of expert opinion evidence. Rule 40A’s provisions, specific to civil proceedings, govern over section 10 and 11 of the Evidence Act, R.S.B.C. 1996 c.124. Rule 40A states as follows:

Application

(1) This rule does not apply to summary trials under Rule 18A, except as provided in that rule.

Admissibility of written statements of expert opinion

(2) A written statement setting out the opinion of an expert is admissible at trial, without proof of the expert’s signature, if a copy of the statement is furnished to every party of record at least 60 days before the statement is tendered in evidence.

Admissibility of oral testimony of expert opinion

(3) An expert may give oral opinion evidence if a written statement of the opinion has been delivered to every party of record at least 60 days before the expert testifies.

Idem

(4) The statement also may be tendered in evidence.
Form of statement
(5) The statement shall set out or be accompanied by a supplementary statement setting out the following:

(a) the qualifications of the expert;
(b) the facts and assumptions on which the opinion is based;
(c) the name of the person primarily responsible for the content of the statement.

Formal Requirements for drafting the expert report in 40A(5).

The formalities of Rule 40(A) 5 must be complied with, at the very least, for admissibility. The following must be included in the report.

• A summary list of qualifications or a CV must accompany the report
• All reports and records relied on/or reviewed must be listed with dates and authors
• The report must clearly state who is the person responsible for drafting the opinion.
• The facts and assumptions relied on by the expert must be clearly identified. If this is not clear, the report is objectionable and may be corrected prior to trial, or risk being ruled inadmissible in part or in its entirety.

Section 53 Notice of Expert Opinion in Ontario

Section 53 of the Evidence Act R.S.O. 1990, c. E.23 outlines the procedure for the admission of reports into evidence by practitioners. Practitioners are defined as:

(a) a member of a College as defined in subsection 1(1) of the Regulated Health Professions Act, 1991,
(b) a drugless practitioner registered under the Drugless Practitioners Act,
(c) a person licensed or registered to practice in another part of Canada under an Act that is similar to an Act referred to in clause (a) or (b).

As in British Columbia the purpose of Section 52 notice is to save court time by allowing counsel to put expert evidence before the court in the form of a report without necessarily having to call the witness to give the opinion in Court. The opposite party, as in British Columbia, is entitled to cross-examine the medical practitioner on the contents of the report.

Rule 53.03 of the Ontario Rules of Civil Procedure R.R.O. 1990, Reg.194 sets out the rules that must be followed for an expert report to be admissible, as follows:

Experts’ Reports

53.03 (1) A party who intends to call an expert witness at trial shall, not less than 90 days before the commencement of the trial, serve on every other party to the action a report, signed by the expert, setting out his or her name, address and qualifications and the substance of his or her proposed testimony.

(2) A party who intends to call an expert witness at trial to respond to the expert witness of another party shall, not less than 60 days before the commencement of the trial, serve on every other party to the action a report, signed by the expert setting out his or her name, address and qualifications and the substance of his or her proposed testimony.

Sanction for Failure to Address Issue in Report or Supplementary Report
(3) An expert witness may not testify with respect to an issue, except with leave of the trial judge, unless the substance of his or her testimony with respect to that issue is set out in,

(a) a report served under this rule; or
(b) a supplementary report served on every other party to the action not less than 30 days before the commencement of the trial.

The Rules to ensure the expert opinion is admissible (or conversely objections which will keep it from ever becoming evidence)

The principles upon which reports may be found objectionable and/or inadmissible are consistent across Canada. Specific rules for the format and delivery of reports may vary with the legislation of a particular jurisdiction. (See Rule 53.03 of the Ontario Rules of Civil Procedure R.R.O. 1990, Reg.194).

Scope of expertise

The qualifications of the expert must be clearly outlined for the Court, usually in a curriculum vitae and/or in the report itself, as this will ultimately define the limit or scope of opinion evidence that expert may give. Qualifications should be complete; this is not the place for an expert to be modest. In the case of two experts with the same formal qualifications, they may be entitled to give opinion evidence on the same issue. However, the differences of experience as between those experts may be used by the court in determining how much weight or reliance to give that opinion.

• Vallance v. Vallance [1994] B.C.J. No. 3288 (S.C.) is a British Columbia case that illustrates the principle that experts must stay within their area of expertise, or risk having their opinions ruled inadmissible. In Vallance v. Vallance several portions of a medical report in a motor vehicle injuries claim were ruled inadmissible because they commented on the basic or ultimate issues to be decided by the jury. The expert described himself as an expert in “orthopaedic and spinal surgery”. The following is an example of a passage that was ruled inadmissible because it ventured into the area of vocational expertise.
  ” No harm or damage would accrue should she choose to return to her former work as a barmaid/waitress. However, she may find this work uncomfortable and may wish to consider alternative vocations requiring less lifting. Clearly she is not totally disabled and many vocations are available in the guideline stated above. Vocational counselling may be helpful should she choose not to return to work in her former capacity.” Vallance v. Vallance [1994] B.C.J. No. 3288 (S.C.) at p.2.

Usurping the role of trier of fact or offending the ultimate issue rule

The closer the testimony gets to the ultimate issue the court has to decide, the more inclined it is to reject it. The justification for this prohibition is said to be that such an opinion would “invade the province” or “usurp the function” of the jury. J. Sopinka, S. N. Lederman, A.W. Bryant, The Law of Evidence in Canada (Ontario: Butterworths, 1992).

In other words, if the expert opinion goes beyond providing the trier of fact with the tools to make a decision and actually makes the decision for them, the expert opinion may have gone too far.

In Sengbusch v. Priest (1987), 14 B.C.L.R. (2d) 26 at 40 (S.C.). the Court held that: “An expert’s opinion is only admissible if, and to the extent that, the opinion will “furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary”.

Or, as stated by Mr. Justice Lowry in Rowe v. Bobell Express Ltd. [2003] B.C.J. No. 705 “It is because the subject matter is beyond the common understanding of judge and jury that assistance is required to ensure that the trier of fact draws the right inference or conclusion from the facts on which the opinion is based: R. v. Mohan, [1994] 2 S.C.R. 9 at 23-25.

Kuo v. Lee (1995), 17 B.C.L.R. (3d) 156 at p. 158 (S.C.) The issue of duty of care is a question of law for the court to decide. An expert report commenting on duty of care is not admissible. In other words, the ultimate issue to decide in the case was someone owed a duty of care to another. An expert’s role is to furnish the court with tools to make this decision, not make it for the Court.

Facts and Assumptions

While styles vary, expert opinion reports should have an identified section outlining the fact and assumptions upon which the report is based. The assumptions may be given to the expert by counsel (and if given must be accepted). For example counsel may instruct the expert as follows: “For the purpose of your report, please assume that Mr. Jones has suffered a traumatic brain injury” or “please assume that Mr. Jones is unable as a result of his injuries to return to his former employment.”

Mr. Justice Lowry in Rowe v. Bobell Express Ltd. [2003] B.C.J. No. 705 gives some guidance on the matter of facts and assumptions.

The opinion of a witness of expert qualifications may be adduced in evidence when it is necessary to prove one or more facts that cannot be satisfactorily proven in some other way. It is because the subject matter is beyond the common understanding of judge and jury that assistance is required to ensure that the trier of fact draws the right inference or conclusion from the facts on which the opinion is based: R. v. Mohan, [1994] 2 S.C.R. 9 at 23-25 and the authority cited there. Rule 40A of the Rules of Court permits the opinion of an expert witness to be proven by tendering a statement of the opinion without the necessity of the witness being called. The statement must, however, contain the facts and assumptions on which the opinion is based. As I have said before, it is my view that the statement should set out all of the facts necessary to the opinion, but only those facts: Croutch (Guardian ad litem of) v. B.C. Womans& #8217; Hospital et al., [2001] B.C.J. No. 1430 at para at 13-17.

The facts, known or assumed, should be immediately apparent. The reader should not have to cull them out of pages recording what was said in the course of interviews or observed during examinations or revealed by tests administered. Descriptions of professional assessments of that kind may be quite useful in a medical-legal report to counsel, but they are generally of little assistance and often serve only to make what should be a concise statement of opinion of an expert witness into an unnecessarily long and tedious document to read and understand.

What is necessary for the purposes of the rule is that the facts upon which the opinion is based by clearly set out, not that the evidentiary basis whereby those facts are to be proven be described. It matters not that the witness was told, or observed, or determined some fact. All that should be stated is the fact itself.

A report will be found inadmissible if is unclear who is the author of the opinion. Joint opinions are not admissible. Each expert must be responsible for only his or her own opinion and that opinion must fall within the scope of the author’s expertise. Heidebrecht v. Fraser-Burrard Hospital (1995) , 15 B.C.L.R. (3d) 189 at pp. 190-191.

A report that does not include the facts and assumptions on which the opinion is based will be ruled inadmissible. An expert’s working papers that include the facts and assumptions will not be sufficient to cure the defect, as the goal of Rule 40A is to provide a mechanism whereby the expert’s report can be admitted into evidence without the requiring the expert to testify. Goerzen v. Sjolie (1997), 142 W.A.C. 44, 86 B.C.A.C. 45 at p. 49.

Cogar Estate v. Central Mountain Air Services Ltd. (1992), 72 B.C.L.R. (2d) (C.A.) The Court of Appeal upheld the trial judge’s ruling against the admissibility of an economic/actuarial type report because it:

(1) repeatedly offended the ultimate issue rule;
(2) was replete with findings of fact that usurped the court’s function;
(3) many of the findings of fact made by Mr. Ostermueller were not of a scientific or technical nature and did not require expert opinion for their proof;
(4) the report was a “thinly disguised argument made by a partisan advocate using slanted facts;” and
(5) it was not possible to sever out the argument from the body of the report.”

Disclosure of the Expert’s File

The expert’s work, including the report, commissioned by counsel for the purpose of litigation is protected from involuntary disclosure by the doctrine of solicitor/client privilege. That privilege is a fundamental principle of Canadian justice which has evolved into a substantive rule and must be protected, albeit not at all costs. (Smith v. Jones, [1999] 1 S.C.R. 445 (S.C.C.) )

Before the report of an expert retained directly by counsel for the party is produced in the litigation, that expert’s communications are protected as if they are communications between solicitor and client and that expert’s work product is protected as if it were the solicitor’s work product.

If the expert remains a confidential advisor the work of the expert remains entirely confidential. This is useful when counsel has need of advice and information pertaining to a particular subject area. However, this changes once the expert takes the witness stand. Once in trial, you should assume everything in your file needs to be kept and produced to opposing counsel. When testifying, the expert takes on a duty to the court and must not be a partisan “advocate”.

Interviews of Experts by Opposing Counsel and the Rule of Privilege

An expert retained by counsel solely as an expert is protected by solicitor-client privilege. However, there is no property in a witness. An expert witness is treated the same as any other witness once the witness takes the stand. Therefore, an opposing party cannot prevent counsel from speaking to his or her expert (subject to the lawyer’s Canons of Ethics) on matters unless they are properly protected by legal professional privilege. Pasco v. Bouchard, [1987] B.C.J. No. 3100 (QL) (S.C.) It is essential this be preserved because if waived it opens doors to opposing counsel. This explains why reports in litigation may not be widely circulated.

In the case of a treating practitioner that becomes an expert, the practitioner owes a duty of confidentiality to his patient and may also owe a duty of confidentiality to counsel if counsel retains him or her as an expert in connection with litigation. The health care practitioner may require certain guidelines be met prior to discussing treatment of the plaintiff with opposing counsel. See Swirski v. Hachey (1995), 16 B.C.L.R. (3d) 281 S.C.

Comments on Cost of Care and Vocational Reports

A. Cost of Care Assessments

Who has the Knowledge?

Cost of care assessments are undertaken by persons with a variety of qualifications including: life care planners, occupational therapist, physiotherapists, rehabilitation consultants, and rehabilitation nurses, as examples. As cases vary, the demands for specific qualifications will also vary. Choosing the right expert fit for a particular case must be decided on a case by case basis.

What is the Test?

In the case of any expert, it is essential that the expert know the legal test for his or her area of expertise.

Dickson J. of the Supreme Court of Canada explained concept of “full compensation” for pecuniary, including cost of care awards, as follows, in Andrews v. Grand & Toy Alberta Ltd.(1978),83 D.L.R. (3d) 452 at 462 (S.C.C.)

In theory a claim for the cost of future care is a pecuniary claim for the amount which may reasonably be expected to be expended in putting the injured party in the position he would have been in if he had not sustained the injury. Obviously, a plaintiff who has been gravely and permanently impaired can never be put in the position he would have been in if the tort had not been committed. To this extent, restitution in integrum is not possible. Money is a barren substitute for health and personal happiness, but the extent, within reason, that money can be used to sustain or improve the mental or physical health of the injured person it may properly form part of a claim.

The current law respecting the assessment of damages in very serious personal injury cases derives from the Trilogy. The decision of Madame Justice McLachlin in Milina v. Bartsch, supra. is an oft quoted decision summarized earlier. Madame Justice McLachlin (as she then was) decision has received approval for example see Terracciano (Guardian ad litem of) v. Etheridge, [1997] B.C.J. 1051 (S.C.) wherein Justice Saunders states [para 98]:

98 Damages for the cost of future care are intended to enable the plaintiff to be rehabilitated so far as is reasonable. In Andrews, supra, Mr. Justice Dickson stated at p.241:

In theory a claim for the cost of future care is a pecuniary claim for the amount which may reasonably be expected to be expended in putting the injured party in the position he would have been in if he had not sustained the injury. … Money is a barren substitute for health and personal happiness, but to the extent within reason that money can be used to sustain or improve the mental or physical health of the injured person it may properly form part of the claim.

& #8230; 101 I am guided, as was Madam Justice Levine in Jacobsen v. Nike Canada Ltd. (1996), 19 B.C.L.R. (3d) 63 at 99 (S.C.), by the test described by Madam Justice McLachlin in Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.) at p.84:

The award for cost of care should reflect what the evidence establishes is reasonably necessary to preserve the plaintiff’s health. At the same time, it must be recognized that happiness and health are often intertwined.
& #8230;

The decision Brennan v. Singh, [1999] B.C.J. No. 520 (S.C.), per Harvey J., states:

78 In an historical perspective, here revisiting the trilogy, the test for the standard of care generally is whether a reasonably-minded person of ample means would be ready to incur the expense. When measuring reasonableness, the expense should not be a squandering of money.

In a recent case argued by Webster and Associates for the Plaintiff, Mitchell v. We Care Health Services Inc. et al. B.C.J. [2004] B.C.J. No. 1400 (S.C.) Mr. Justice Kelleher made the following comments on the approaches to cost of care by experts Ms. Landy for the Plaintiff and Ms. Quastel for the defence.

Although both experts endeavoured to assist the court, I was troubled by MS. Quastel’s approach to future care. She expressed surprise at the current cost of Ms. Mitchell’s care and criticized that cost based on her view of the average cost of caring for a quadriplegic. Her report appears to be influenced not so much by Ms. Mitchell’s needs as by what persons in similar circumstances typically require. This approach might be satisfactory when checking the eventual estimate to determine whether it is in a normal range, but the central question is what this plaintiff requires. Mitchell v. We Care Health Services Inc. et al. [2004] B.C.J. No. 1400 (S.C.) p. 33.

Perspective

The legal test for future cost of care contemplates a life time perspective for cost of care. Depending on the individuals life expectancy and anticipated changes in need over the long term, the cost of care may change over that lifetime.

Source of Information Supporting Costs

The law allows hearsay evidence to support the cost of care recommendations and it is unavoidable in the context of future care planning. When relying on hearsay evidence, it is important to remember that hearsay as a foundation for an opinion is only as strong as the hearsay information. If the cost of care expert relies on a doctor’s diagnoses as a factual underpinning to the opinion, that doctor’s opinion must be admitted into evidence and accepted by the Court. It is counsel’s job to ensure the factual underpinnings in the form of hearsay are proven to support the care recommendations.

The following comments of Thackray J. in Anderson (Guardian ad litem of) v. Bicknell [1998] B.C.J. No. 1847 at para 90 illustrate this point:

Mr. Justice Meredith expressed concerns about the expert’s reliance on self-assessment by the plaintiff. I find that his concerns are not dissimilar to mine. The reflections from this senior judge confirm in my mind that there is merit in adopting a test of “performance”, that objective evidence must be carefully considered relative to self-assessment evidence and that the reliance by experts upon such assessments and upon untested collateral evidence must be weighed with caution.

B. Vocational Assessments

 

The Legal Test for Loss of Earning Capacity and Pre-Incident Earning Potential

The vocational expert’s evidence may assist the Court in deciding what if any loss of earning capacity the plaintiff is entitled to be compensated for based on the plaintiff’s pre-incident earning potential and post-incident level of function. The principle of full compensation, as with cost of care similarly applies to loss of earning capacity. It is the task of the Court to ” as nearly as possible get at that sum of money which will put the [plaintiff] & #8230; in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation”. Livingstone v. Rawyards Coal Co. (1880), 5 App. Cas. 25 at 39 (H.L.) per Lord Blackburn, quoted with approval in Andrews v. Grand & Toy Alberta Ltd. (1978), 83 D.L.R. (3d) 452 at 462 (S.C.C.).

The loss of earning capacity to be assessed by the vocational expert is not a stream of income, but rather a loss of capacity based on the plaintiff’s pre-morbid potential, including skills, abilities, aptitudes and interests.

Expert vocational evidence will draw on other opinions such as doctor’s diagnoses and possibly neuropsychological testing as well as the testing administered by the vocational expert. For vocational opinions, working definitions of terms of art must be defined in the report to guide the trier of fact. For example, the term “competitive employability” should be explained and the process of analysis in making a determination with respect to this issue should be clearly outlined. This will give the Court an objective benchmark from which to understand the expert opinion and measure the opinion and level of the plaintiff’s function. If the Court finds that it is more likely than not that the proposed vocational opinion is an accurate assessment of the plaintiff’s vocational function, then Court will have accepted the opinion.

Vocational experts, in addition to assessing level of function and residual earning capacity, may be asked to consider lost opportunities or chances for advancement within a career or into other career paths. Absent the injury, how would the Plaintiff’s career have progressed? This is most relevant with younger people. Here the Court is assessing the likelihood that a certain event may have occurred. In the case of a young person, one may presume they would have worked (as we all have to) and the question may be: “At what career and with what chance of extra success or unfortunate failure?” Pre-injury events are less likely to involve the vocational consultant than post injury predictions. Both are valid questions.

Based on the level of vocational impairment, according to the expert, recommendations for future rehabilitation and/or maintenance of the status quo over a life time should be provided. These recommendations are opinions in their own right and may assist the trier of fact on issues of cost of care determinations.

Probabilities and Possibilities

The law looks at events which occurred in the past and opinions relating to them, as probabilities. For example, it is probable (50% +1) that the plaintiff will be affected by his past injury.

Possibilities are the chance of a future event happening. It is possible the plaintiff would have been an NHL hockey player but the chance was 5% before the injury.

Reliance on Others

Vocational consultants; perhaps more than most experts, must rely on the opinions of other experts. If that occurs, these opinions must be stated as assumed facts. Eg. “The plaintiff suffered a severe frontal lobe traumatic brain injury and that will not improve.” If based on hearsay, the source of hearsay evidence must be solid.

The vocational, as with other experts, must be careful to limit his or her expert opinion to one within his or her specialty.

Be Aware of False Positives

We suggest that what is important for the Court to understand may be not only be the plaintiff’s ability to get work, or return to work, but the plaintiff’s ability to compete in the market place, obtain and keep the position, indefinitely. Counsel are very sensitive to opinions around employment, as the financial consequences can be huge. This is particularly so with statements of a “false positive”. For example, the plaintiff is given a placement and stays for six months and is pronounced competitively employable. In fact the job is then lost and no other successful employment ever occurs. The plaintiff has a) no damages for loss of employment b) no wages from employment. This results in tragic undercompensation. The converse, an opinion that the plaintiff is not competitively employable, may result in unfair compensation. However, the legal system usually reduces the former rather more faithfully than it ameliorates the latter.

References

– Rule 53.03 of the Ontario Rules of Civil Procedure R.R.O. 1990, Reg.194.
– Rule 40A of the British Columbia Supreme Court Rules, R.S.B.C. 1996, c. 443.
– Buzzard J.H., et al., Phipson on Evidence (London: Sweet & Maxwell, 1976).
– Cooper-Stephenson K., Personal Injury Damages in Canada (Toronto: Carswell, 1996).
– Sopinka J. et al., The Law of Evidence in Canada (Ontario: Butterworths, 1992).