



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Healey v. Chung,









2015 BCCA 38




Date: 20150203

Docket: CA041711

Between:

Douglas Healey

Appellant

(Plaintiff)

And

Sun Im Sunnie
Chung also known as Sun I. Chung

Respondent

(Defendant)

Corrected
Judgment:  The summary was corrected at p. 2 on February 4, 2015.




Before:



The Honourable Madam Justice Saunders

The Honourable Madam Justice Kirkpatrick

The Honourable Madam Justice D. Smith




On judicial review
from:  An order of the Supreme Court of British Columbia,
dated March 14, 2014 (
Healey v. Chung
, 2014 BCSC 429,
New Westminster Docket No. M98684).




Counsel for the Appellant:



G.R. Cameron





Counsel for the Respondent:



P. Mazzone





Place and Date of Hearing:



Vancouver, British
  Columbia

November 17, 2014





Place and Date of Judgment:



Vancouver, British
  Columbia

February 3, 2015









Written Reasons by:





The Honourable Madam Justice Saunders





Concurred in by:





The Honourable Madam Justice Kirkpatrick





The Honourable Madam Justice D. Smith








Summary:

The appeal is from an award
of damages for injuries sustained when the appellant in a crosswalk with the
light in his favour, was struck by a vehicle driven by the respondent. He
contends the judge erred in receiving as expert reports, consulting reports from
physicians to his doctor disclosed to the defendant in the family physicians
clinical records, in misapprehending aspects of his medical files, in
misapprehending evidence concerning the appellants recollection of the
accident, in misapprehending evidence relating to his employment and loss
thereof, and in considering the issue of mitigation of damages. Held: Appeal
allowed. The two consulting reports in issue which were material to the order
appealed, did not satisfy the requirement for attestation of the reports by the
experts required by R. 11-2, or contain the essential requirements
required by R. 11-6. As such, they were not expert reports for the
purposes of R. 11-6(10) and (11). Further, the complaints of
misapprehension of the medical files, and evidence of the appellants
recollection of the accident, are established. On these two bases, a new trial
is ordered.

Reasons for Judgment of the Honourable
Madam Justice Saunders:

[1]

Mr. Healey appeals from the judgment of $50,652.64 awarded to him
for personal injuries suffered when, as a pedestrian, he was struck by a motor
vehicle driven by the respondent, Ms. Chung.

[2]

Liability was admitted and the only issue at trial was the quantum of
damages. Mr. Healey claimed the accident caused him ongoing physical and
psychological injuries from what he said was a significant incident. Mr. Healey
claimed damages of $485,000 or more for his injuries, including a significant
sum for future loss of income.

[3]

In his reasons for judgment Mr. Justice Ball did not accept Mr. Healeys
view of the gravity of the incident or the injuries he claimed. Further, he
held that Mr. Healey had failed to mitigate his damages.

[4]

Mr. Healey contends that the judges assessment of his credibility
cannot stand for two reasons. First, he says the judges view of his evidence
was heavily influenced by evidence in the form of consulting reports that he
says were wrongly admitted as expert reports. Second, he contends that the
judge misapprehended the evidence in matters relevant to the assessment of his
credibility. Mr. Healey also submits that the judge erred in law in
respect to the onus to prove a failure to mitigate by finding such a failure
absent findings of fact that employment was or would have been available to Mr. Healey.

[5]

The accident occurred on December 4, 2005, at the intersection of
41
st
Avenue and Clarendon Street, in Vancouver, British Columbia. Mr. Healey
was walking southbound across 41
st
Avenue in a marked crosswalk with
a green light in his favour. As he crossed the street he was struck by a
vehicle driven by Ms. Chung.

Admission
of Clinical Records

[6]

Mr. Healeys first complaint is that the judge wrongly admitted
documents found in the clinical records of the family physician (described by
the parties as consult letters) as expert reports.

[7]

The medical evidence and evidence of Mr. Healeys physical capacity
consisted of expert reports from seven expert witnesses: Dr. Kuo, Mr. Healeys
family physician (three reports); Dr. Hershler, a specialist in physical
medicine and rehabilitation (three reports); Dr. OShaughnessy, a psychiatrist;
Dr. Schmidt, a clinical psychologist qualified in neuropsychology; Mr. Worthington-White,
an occupational therapist (two reports); Ms. Landy, a registered nurse
with expertise in rehabilitative nursing; and Dr. Powers, an expert in
vocational rehabilitation.

[8]

Ms. Chung adduced one report from an independent medical examiner, Dr. Schweigel,
an orthopaedic surgeon. In addition, Ms. Chung proffered as evidence the consulting
reports of Dr. To and Dr. Truong, psychiatrists, reporting to Dr. Kuo
following a referral of Mr. Healey. Mr. Healey says these two
documents were wrongly admitted as expert reports. Dr. Tos consulting report
is entitled Mental Health Initial Assessment  Consult and refers to a
psychiatric assessment, but the doctors qualifications are not revealed in
the report, nor is it signed. Dr. Truongs consulting report is entitled Psychiatric
Assessment and refers to the doctor as a psychiatrist, although it does not
describe more fully the doctors qualifications. It is signed.

[9]

The two contested documents were part of the clinical file of Dr. Kuo,
and were properly disclosed to Ms. Chung. Prior to trial, counsel for Ms. Chung
advised counsel for Mr. Healey that she intended to rely on these
documents as expert reports. Counsel for Mr. Healey did not respond to the
letter, being of the view that the documents were not expert reports within the
meaning of R. 11-6 of the
Supreme Court Civil Rules
and that the
law therefore did not require him to provide notice of his objection unless and
until they were tendered at trial.

[10]

When the two documents were tendered at trial, counsel for Mr. Healey
objected on the basis they were not admissible opinion evidence, in form or
content. Counsel for Ms. Chung offered to produce the doctors for
cross-examination, although they were never called.

[11]

The judge ruled that the two documents met the admissibility requirements
of the
Supreme Court Civil Rules
, saying:

[8]        In the case before me I am obliged in the circumstances
to look at Rule 11-6, and particularly Sub-Rule 1, where the requirements for
an experts report [are] discussed. The rules are not to be taken out of
context. In the context of this case, it is very clear that Dr. Kuo, who
was the treating physician of Mr. Healey, the plaintiff, was well aware of
the location, area of expertise, address, name, qualifications of the persons
to whom she sent Mr. Healey because these reports resulted from her
sending Mr. Healey to both doctors.



[10]      As a result, we have a document which in these
circumstances the expert's name, address, and area of expertise, with his
qualifications, employment and educational experience are well known. The
instructions are simple. The nature of the opinion sought and the issues are
set out. The experts opinion is there on the issues and I am satisfied that
the experts opinion contains the required factual underpinning set out in
11-6(1)(f).



[18]      In the circumstances, I
am satisfied that while it is not perfect compliance with the rules, it is
certainly sufficient compliance in the circumstances where the parties knew so
well who the experts were and, therefore, the documents will be treated as
expert reports in the normal way. I will therefore admit the document signed by
Agnes To and the document prepared by Dr. Truong to which I have referred.

[12]

Rule 11-6 of the
Supreme Court Civil Rules
sets out the
requirements for tendering an expert report:

(1)   An
expert's report that is to be tendered as evidence at the trial must be signed
by the expert, must include the certification required under Rule 11-2 (2) and
must set out the following:

(a) the expert's name, address and
area of expertise;

(b) the expert's qualifications and
employment and educational experience in his or her area of expertise;

(c) the instructions provided to
the expert in relation to the proceeding;

(d) the nature of the opinion being
sought and the issues in the proceeding to which the opinion relates;

(e) the expert's opinion respecting
those issues;

(f) the expert's reasons for his or
her opinion, including

(i)  a description of the factual
assumptions on which the opinion is based,

(ii)  a description of any research
conducted by the expert that led him or her to form the opinion, and

(iii)  a list of every document, if any, relied on by the
expert in forming the opinion.

[13]

Rule 11-2 referred to in R. 11-6(1) provides:

(1)   In
giving an opinion to the court, an expert appointed under this Part by one or
more parties or by the court has a duty to assist the court and is not to be an
advocate for any party.

(2)   If an
expert is appointed under this Part by one or more parties or by the court, the
expert must, in any report he or she prepares under this Part, certify that he
or she

(a) is aware of the duty referred
to in subrule (1),

(b) has made the report in
conformity with that duty, and

(c) will, if called on to give oral or written testimony, give
that testimony in conformity with that duty.

[14]

Rules 11-6(10) and (11) deal with notice of objection to an expert
report in these terms:

(10)      A party who receives an expert report or
supplementary report under this Part must, on the earlier of the date of the
trial management conference and the date that is 21 days before the scheduled
trial date, serve on every party of record a notice of any objection to the
admissibility of the expert's evidence that the party receiving the report or
supplementary report intends to raise at trial.

(11)      Unless the court
otherwise orders, if reasonable notice of an objection could have been given
under subrule (10), the objection must not be permitted at trial if that notice
was not given.

[15]

Mr. Healey contends that the documents of Dr. To and Dr. Truong
failed to set out the qualifications and educational experience of the doctors,
the instructions provided to the doctors, the nature of the opinions sought
and, significantly, most of the items required by R. 11-6(1)(f).

[16]

I will start with R. 11-2. While all of the authors referred to in
para. 7 above attested as required by that Rule (Dr. Kuo in the last of her
three reports), neither of the impugned consulting reports contains a
commitment to the standards of R. 11-2, or evinces the authors awareness that
the documents would be tendered as expert reports. It is plain the two
consulting reports were simply in response to Dr. Kuos referrals of
Mr. Healey in the course of treatment. As such, while opinion, they do not
meet the requirements of R. 11-2 in any respect.

[17]

It is plain, also, that the documents do not comply with R. 11-6(1).
Indeed, I read the judges ruling on this issue as recognizing that they do not.
Yet he held that there was sufficient compliance because the parties knew so
well who the experts were. In particular, the judge referred to Dr. Kuos
knowledge of the qualifications of Dr. To and Dr. Truong. In my
respectful view, referral by a family doctor to a physician with specialized
knowledge does not equate to knowledge by the patient of the specific information
R. 11-6(1) requires in the expert report. Apart from the obvious fact that
the family physician is not naturally privy to the knowledge, education, or experience
of another physician, whatever is known to the family physician does not become
the patients knowledge unless the doctor communicates that knowledge to the
patient. More importantly, Dr. Kuos knowledge and comfort with the
clinical expertise of Dr. To and Dr. Truong is of little assistance
to the court seeking to determine the weight to be accorded various pieces of
evidence, including not only the reports those physicians authored but also the
evidence from other physicians.

[18]

Nor is there adequate recitation in the documents authored by Dr. To
and Dr. Truong of the bases for the opinions expressed. For example, Dr. To
states [Mr. Healey] is very selective and inconsistent when he tells me
what happens from that time on and [i]t seems that he has different
interaction among the different health professionals who have been involved in
his care, but she does not describe the documents or research conducted that
led to those opinions (R. 11-6(1)(f)), thereby to permit the court to assess
the validity of the statements.

[19]

It is well established that clinical consulting reports, without more, may
not be admitted for the validity of opinions expressed in them. In
Mazur v.
Lucas
, 2010 BCCA 473, 325 D.L.R. (4th) 385, this court observed:

[42]      New Rule 11-6 expands
on what an expert was required to state under old Rule 40A, but does not alter
the general principle that it is essential for the trier of fact to know the
basis of an expert opinion so that the opinion can be evaluated. The Rule has a
dual purpose. The second purpose is to allow the opposing party to know the
basis of the experts opinion so that they or their counsel can properly
prepare for, and conduct, cross-examination of the expert, and if appropriate,
secure a responsive expert opinion. Thus, the result of these reasons would be
the same if this case had arisen under the new Rules. There is nothing in these
Rules touching directly on the question of the admissibility of hearsay
evidence in expert reports.

[20]

While there is, perhaps, room for some latitude in determining whether a
document meets the requirements of the Rules, for example as to including the
address and expertise where those are capable of easy determination based upon
the information in the document, the essential components of qualifications,
education, experience, information and assumptions on which the opinion is
based, the instructions given, and the research, must be included to justify
receipt of the report as an exception to the hearsay rule. This conclusion is
consistent with authorities addressing the admissibility of opinion or consulting
reports included in clinical records:
Seaman v. Crook
, 2003 BCSC 464, 14
B.C.L.R. (4th) 132;
Cunningham v. Slubowski
, 2003 BCSC 1904; and
F.(K.E.)
v. Daoust
(1995), 3 B.C.L.R. (3d) 128, 34 C.P.C. (3d) 393 (C.A.). In
F.(K.E.)
,
Mr. Justice Hutcheon said, in relation to R. 40A of the
Rules of
Court
, which was less demanding in the content of an admissible expert
report than current R. 11-6(1):

[13]      I can only say that what occurred was most
unsatisfactory. The admissibility into evidence of the written reports of
experts is an exception to the usual rule that witnesses be examined and
cross-examined in open court. The exception was introduced into this Province
in 1976 by way of an amendment to the
Evidence Act
. Certain safeguards
were and are provided including the delivery of the report some days before
trial (now at least 60 days) and a statement of the qualifications of the
expert. The safeguards did not operate in this case.



[15]      Other than the information on her letterhead we
know nothing of the qualifications of Dr. Sivertz. No order was made to
dispense with the requirement of Rule 40A(5)(b).



[20]      Whatever the
explanation, I am of the view that the plaintiff did not consent to the
admissibility of Dr. Sivertzs report under the provisions of Rule 40A. I
am further of the view that in the circumstances of this case the report ought
not to have been admitted as an opinion on the vital question of causation.

[21]

It is true, as the respondent contends, that
Seaman
and
F.(K.E.)
are cases in which the opinion sought to be adduced was found in clinical
records that were voluminous, but I do not consider that circumstance detracts
from the principle that a clinical record containing an opinion, such as these
consulting reports, must substantially comply with the requirements of the
Rules in order to attract the exception to the usual rule for examination of
witnesses spoken of by Mr. Justice Hutcheon.

[22]

The respondent contends that she gave notice to Mr. Healey of her
intention to use the letters, that Dr. Kuo knew of the qualifications of
the two doctors, and that other deficiencies were minor. She says Mr. Healey
was obliged to express his objections as required by R. 11-6(10) and (11).

[23]

Forthrightness between counsel is favoured and is to be expected in
litigation. Yet I cannot say there was anything to which we have been referred
that put the positive legal duty on Mr. Healey to object under those Rules
for the reason that the consulting reports sent to Dr. Kuo and disclosed
as part of her clinical records were simply not expert reports as regulated
by the Rules. While they may be professional opinions from one doctor to
another in the course of treatment, the impugned documents do not comply with
R. 11-2; I do not consider they carry the basic hallmark of an expert
report, being an opinion intended by the author, at some point, to be
presented for the assistance of the court. Significantly, they contain none of
the information that is essential to qualification of the author as an expert,
nor the information reviewed by the author by which the court may assess the
cogency of the opinion.

[24]

As I do not consider that these clinical records can be considered to be
expert reports as that term is used in the Rules, entitled to the privileged
treatment for receipt of hearsay evidence discussed by Mr. Justice
Hutcheon, I conclude that R. 11-6(10) and (11) did not require a notice of
objection.

[25]

In the alternative to the two documents coming within R. 11-6, Ms. Chung
says the judge could have exercised his discretion and admitted the documents
as opinions under R. 11-7. Rule 11-7 provides latitude to a judge to
receive opinion evidence that is not included in an expert report:

(1)
Unless
the court otherwise orders
, opinion evidence of an expert, other than an
expert appointed by the court under Rule 11-5, must not be tendered at trial
unless

(a) that evidence is included in a
report of that expert that has been prepared and served in accordance with Rule
11-6, and

(b) any supplementary reports
required under Rule 11-5 (11) or 11-6 (5) or (6) have been prepared and served
in accordance with Rule 11-6 (5) to (7).



(6)
At
trial, the court may allow an expert to provide evidence, on terms and
conditions, if any, even though one or more of the requirements of this Part
have not been complied with
, if

(a) facts have come to the
knowledge of one or more of the parties and those facts could not, with due
diligence, have been learned in time to be included in a report or
supplementary report and served within the time required by this Part,

(b) the
non-compliance is unlikely to cause prejudice

(i)    by
reason of an inability to prepare for cross-examination, or

(ii)   by
depriving the party against whom the evidence is tendered of a reasonable
opportunity to tender evidence in response, or

(c) the
interests of justice require it.

[Emphasis
added.]

[26]

Ms. Chung does not contend the judge exercised his discretion under
R. 11-7(1). Her approach is consistent with the record that shows the
judge was not asked to exercise his discretion, and it is consistent with Ms. Chungs
submission at trial which approached the question as one of compliance with
R. 11-6. We are invited, however, to approach these documents as admissible
in the exercise of discretion.

[27]

I do not consider that this is an appropriate case for us to engage for
the first time in a full analysis of discretion, so as to draw our own
conclusions. At trial the judge did not consider his R. 11-7 discretion
and accordingly the possibility of exercising discretion is without his
expansion. In
XY, LLC v. Zhu
, 2013 BCCA 352, 366 D.L.R. (4th) 443, Madam
Justice Newbury for the Court adopted this description from
Perry v. Vargas
,
2012 BCSC 1537 at para. 22:

In my view the discretion
provided for in R.11-7(6)(c) must be exercised sparingly, with appropriate
caution, and in a disciplined way given the express requirements contained in
Rules 11-6 and 11-7. That is, the interests of justice are not a reason to
simply excuse or ignore the requirements of the other Rules. There must be some
compelling analysis why the interests of justice require in a particular case
the extraordinary step of abrogating the other requirements of the
Supreme
Court Civil Rules
. None was provided.

[28]

Adopting that approach, in my view this is not a case for us to exercise
the discretion that was available to the judge under R. 11-7.  There was ample
medical evidence before the court, absent the opinions from these documents, to
guide the trial judge in findings of fact. Further, it was open to the
defendant to develop her own body of medical opinion and to advance it in
proper form, including as to the required description of qualifications and
experience and listing of opinion sought and matters considered. I see no
compelling reason to derogate from the requirements of either R. 11-2 or R. 11-6
in this case. To do so, in my view, would admit into evidence opinions that
were not crafted for that purpose and that are without the necessary
information to permit consideration of their substance and effect in the
context of the issues before the court.

[29]

Last, Ms. Chung contends that the two documents, in any event, were
inconsequential in the judges reasons, and thus the admission of these
documents had little impact on the outcome of the case.

[30]

One of the issues at trial was the assertion by Mr. Healey that he
suffered from depression caused by the accident. This allegation bore upon the
assessment of damages. To support this allegation was an expert report from Dr. OShaughnessy.
Based upon the medical records and his interview with Mr. Healey, Dr. OShaughnessy
diagnosed Mr. Healey as having an Adjustment Disorder with anxiety and an Adjustment
Disorder with depressed mood. Yet the judge rejected all allegations of
depression and instead relied upon the two consulting reports, saying:

[58]      Mr. Healey stated
that he suffered from depression because of the accident. Depression was not reported
in his post-accident symptomatology until 2008. Dr. Kuos records do show
that in 2003 she concluded that Mr. Healey had symptoms consistent with
depression. This reporting, however, preceded the accident, and according to
the psychiatric specialists Dr. Kuo referred Mr. Healey to in 2009
and 2010, no evidence supported any Axis 1 diagnosis in the DSM-IV, and no
symptoms met the criteria for post-traumatic stress disorder.

[31]

I would first observe that Dr. Truongs report cryptically states Axis
1: Adjustment d/o with depressive symptoms  in remission and by so saying Dr. Truongs
report appears to be inconsistent with the judges statement: according to the
psychiatric specialists [Dr. To and Dr. Truong] no evidence supported
any Axis 1 diagnosis. Perhaps this exemplifies the effect of non-compliance
with the requirements for expert reports, as the judge drew from the report a
categorical absence of any Axis 1 diagnosis which appears to be inconsistent
with Dr. Truongs report. Setting that discrepancy between the judges
assertion and the notation in Dr. Truongs report aside, it is clear from
the judges para. 58 that he put weight on the consulting reports and drew
conclusions from them adverse to Mr. Healey. In other words, they were
consequential in the judges reasoning; one cannot say the reports had little
bearing on the outcome, in my view.

Errors
of Fact

[32]

Mr. Healey also complains of several factual matters. The judge
rejected Mr. Healeys evidence, saying:

[2]         I reject the bulk of the plaintiffs evidence
regarding the nature of the accident and the injuries he claims to have
sustained. He was not a credible witness. The plaintiffs almost complete lack
of credibility made determining what actual injuries occurred during the
pedestrian-vehicle accident quite complicated.

[3]        Many profound
differences exist between the facts of the accident as I found them and the
factual assumptions that many of the medical and other experts who have
proffered opinions made (these differences seriously question the evidentiary
value of those reports).

[33]

Mr. Healey says that this conclusion is fatally flawed because the
judge misapprehended evidence, including evidence material to his credibility.
He focuses on three areas of misapprehension of the evidence: his reporting of
symptoms to doctors as understood by the judge; the mechanics of the accident; and
his return to work. I need only address the first two of these complaints as
they are sufficient, in my view, to amount to palpable and overriding error.
Thus I do not address the more complex complaint as to the judges treatment of
the evidence concerning Mr. Healeys return to work.

[34]

In my respectful view, the judge overlooked and misapprehended evidence materially
bearing on the credibility assessment, thus fatally undermining the judgment.

[35]

As to the evidence relating to Mr. Healeys reports of symptoms,
the judge found:

[58]      Mr. Healey stated that he suffered from
depression
because of the accident. Depression was not reported in his post-accident
symptomatology
until 2008
. Dr. Kuos records do show that in 2003
she concluded that Mr. Healey had symptoms consistent with depression.
This reporting, however, preceded the accident, and according to the
psychiatric specialists Dr. Kuo referred Mr. Healey to in 2009 and
2010, no evidence supported any Axis 1 diagnosis in the DSM-IV, and no symptoms
met the criteria for post-traumatic stress disorder.



[67]      Dr. Schweigel, who conducted an independent
medical legal examination of the plaintiff, confirmed that, apart from
complaints
of chest pain
related to coughing during a viral illness, chest pain was
not complained of
until summer 2007
. In other words, it was too far away
in time to be associated with the accident.



[87]      With a single exception much later in the course of
treatment by Dr. Kuo,
none of the
medical legal reports or
clinical
records
presented by Dr. Kuo or any of the locums who dealt with Mr. Healeys
case
mention vomiting
.

[88]      The law is clear that the failure to report a
single symptom to a doctor will not itself become a basis for a negative
credibility finding. In this case, one of the ongoing problems, as noted above
regarding complaints about the nature of the accident or with symptoms in the
ribs or chest, is that erroneous facts become the diagnostic basis for an
expert doctor to connect a specific symptom with a specific injury. Here, no
expert report connects vomiting with any injury caused by the accident.

[Emphasis
added.]

[36]

Mr. Healey contends, correctly in my view, that these passages
reflect a misapprehension of evidence as to the first reporting of depression,
vomiting and chest pain. Rather than the first report of depression being 2008,
Dr. Kuos report reveals that Dr. Kuo addressed the potential issue
of medicine and counselling for post-traumatic stress disorder on
December 12, 2005, eight days after the accident. Dr. Kuo also administered
the Beck Depression Scale and discussed antidepressant medication with Mr. Healey
on August 31, 2006. He gave Mr. Healey samples of an antidepressant
on October 13, 2006, all within one year of the accident.

[37]

So too, the judges reference to a failure to report vomiting to doctors
appears to overlook evidence concerning stomach ailments found in Dr. Kuos
reports, first that a month after the accident Mr. Healey was advised to take
Advil rather than Voltarin because Voltarin often gives stomach upset and second
that in June 2006 Mr. Healey was diagnosed with gastritis and reflux most
likely due to use of anti-inflammatories to treat the on-going pain. And the
clinical records of Dr. Posen, a naturopathic doctor, note on August 8,
2006, that Mr. Healey reported episodes of nausea and vomiting.

[38]

Dr. Kuos reports also note that contrary to the judges view that
there was no complaint of chest pain until the summer of 2007, on the
examination the day after the accident Mr. Healey reported chest pain.

[39]

These three symptoms selected by the judge for comment significantly
bear upon the foundation for the judges findings of credibility. On my reading
of his reasons, the judge used the evidence in respect to these three symptoms
to explain his rejection of much of the medical evidence advanced by Mr. Healey.
They are, thus, material and bear upon the resulting order.

[40]

Mr. Healey also is highly critical of the judge in his view of the
mechanics of the accident. The judge said:

[7]        Mr. Eng, who was a driver in the accidents
immediate vicinity, was the sole witness who saw the accident, and he testified
at trial. He said Mr. Healey recognized he was going to be struck by a
vehicle because Mr. Healey turned toward the vehicle putting both hands on
the vehicles hood and pushing away from the vehicle.

[8]        According to Mr. Eng, Mr. Healeys body
ended up on the road by the drivers side door of Mr. Engs vehicle.

[9]        Mr. Eng said the Chung vehicle was not
speeding but did not stop for Mr. Healey. He said Mr. Healey went
maybe five to eight feet in the air and landed about 10 feet from where he was
struck.



[12]      Mr. Eng was an independent
witness and presented his evidence in a forthright and credible manner. I
accept Mr. Engs version of the events of the accident as correct.

[41]

Referring to Mr. Healey in relation to the accident, the judge
said:

[17]      Mr. Healey used
far more dramatic terms than Mr. Eng to describe the accident  especially
to medical practitioners.

[42]

After discussing references in the medical reports to Mr. Healey
saying he was told he had been flung 30 to 40 feet forward in the accident, the
judge concluded with a minimal view of the accident:

[35]      As previously noted, I accept Mr. Engs
evidence as to the events of the accident. He was in a uniquely immediate
position to see the accident from a stationary position. He was not distracted,
and nothing blocked or reduced his vision. I accept his description of the
accident and that Mr. Healey landed approximately 10 feet from the
location where he pushed himself away from the Chung vehicle. While he gave no
estimate of the actual speed the Chung vehicle was travelling, I also accept
the evidence of Mr. Eng that the Chung vehicle was not speeding.

[36]      The immutable laws of physics inform my analysis:
they dictate that the force necessary to cause an adult body struck by a motor
vehicle to fly 20 feet in the air and 40 feet from impact to landing is far
more significant than the force necessary to move an adult body pushing against
a vehicles hood to move 10 feet from impact to landing.

[37]      Moreover, and perhaps more importantly, the
immediate deceleration landing in contact with the hard asphalt surface of 41st
Avenue following a 40 foot flight would be expected to cause injury well beyond
minor contusions.

[38]      I reject any suggestion
that Mr. Healey flew 20 or 40 feet to a height of 15 or 20 feet from
impact to place of rest. The evidence does not support that submission.

[43]

Later in the reasons for judgment, the judge directly attributed to Mr. Healey
a version of the accident that was not true. He said:

[161]    His story is at odds with the evidence of the
accident, and he reported a variety of stories, inconsistent circumstances,
and symptoms to the variety of medical practitioners whose expert reports were
presented at trial.

[162]    This trials only issue
was the nature and extent of accident and its effect on the plaintiff. I find
that his evidence was fabricated.

[44]

The story of the accident, and the nature and extent of the accident
attributed to Mr. Healey in these paragraphs appears to be the one
rejected, that is, of being flung 30 to 40 feet. Yet Mr. Healey never
professed to recall the details of the accident, and attributed his knowledge
of the event to what he was told by others.

[45]

Reading the reasons as a whole, then, it appears to me that the judge,
in the end analysis, has factored into his assessment of Mr. Healey, as if
it was Mr. Healeys own recollection of the accident, the story of Mr. Healey
flying 30 to 40 feet.

[46]

It was certainly open to the judge to accept the independent witnesss
account and it was open to say the medical expert opinions were unreliable to
the extent they relied on the greater travel distance to support the physical
injuries alleged at trial. However, it was not open, given Mr. Healeys
evidence of the source of his version of the accident, to discount Mr. Healeys
reports to doctors as exaggeration because of his account of the accident
unless the judge concluded Mr. Healey was not so informed, a finding that
the judge did not make and an issue he did not address. Nor, in my view, was it
open to attribute to Mr. Healey a story of the accident to which he
professed no independent recollection.

[47]

I am mindful of the deference this court must accord a judges findings
of credibility. However, where evidence is misapprehended that bears upon
credibility in a way that is material to the outcome, the basis for this
courts interference is established. In this case, the finding against the
appellants credibility pervades the judges rejection of his claim for greater
damages. I consider that in the area of the three symptoms, and Mr. Healeys
lack of independent recollection of the accident, the judges comments fatally
undermine his finding of credibility of Mr. Healey and bear upon the
reliability of the expert reports.

Conclusion

[48]

In my respectful view, both the error in admitting the consulting reports
as expert reports and the misapprehensions of evidence I have discussed were
material to the judgment. I conclude the appeal must be allowed. Accordingly,
as this matter should be returned to the trial court for a new trial, I see no
need to address mitigation of damages or the assertions by Mr. Healey challenging
the findings of fact relating to his employment.

[49]

I would allow the appeal, set aside the order, and remit the case to the
trial court for a new trial.

The
Honourable Madam Justice Saunders

I AGREE:

The Honourable Madam Justice
Kirkpatrick

I AGREE:

The Honourable Madam Justice
D. Smith


