ICBC and one of it’s expert doctors were both lambasted in a recent B.C. Supreme Court case.
Many say the case is emblematic of ICBC using experts who they know are unreliable, merely to discredit a plaintiff with a legitimate claim.
In the ruling Justice Dev Dley hammered ICBC’s paid expert witness, the psychiatrist Dr. Hymie Davis, as "an advocate thinly disguised in the cloak of an expert" and assessed special costs against ICBC as a punishment.
"Where a party seeks to advance its position with reckless abandon seeking only the ultimate goal of victory and using questionable evidence along the way, that party risks sanctions in the form of costs penalties," Justice Dley said.
"Where the conduct is reprehensible and deserving of reproof and rebuke, the penalty is special costs."
He quoted the exchange that occurred between Dr. Davis and the court clerk as he took the stand to testify and was offered a glass of water.
"Do you have any scotch in there or is it plain?" the psychiatrist asked.
"Just water," said the clerk.
"Thank you," said the doctor, "I’m not used to water without scotch."
ICBC initially had the plaintiff examined by a leading medical authority in dizziness. Notwithstanding her medical history, the expert concluded her recurring vertigo was probably caused by the collision. During the trial it emerged that ICBC twice tried to get that doctor to change his opinion.
As well, although the plaintiff’s own psychiatrist concluded the accident had triggered depression, ICBC ignored her request for treatment support.
"(Her) recovery could have been assisted if ICBC had participated in the provision of cognitive behaviour therapy," Justice Dley said.
"Her condition could have improved to a level where the assessment of her future loss was more positive, had the therapy being addressed in a timely fashion. Instead, ICBC did not even give the plaintiff the courtesy of a reply to her psychiatrist’s recommendations."
The Judge slammed ICBC for continuing to use the Dr as an expert witness, when his evidence had been attacked by judges in the past.
"Dr. Davis had a history before the courts where his evidence was rejected and his objectivity called into question," Justice Dley complained, noting four previous cases in which the doctor’s testimony was impugned. He is reported to have billed ICBC nearly $300,000 in 2008.
"Dr. Davis had displayed an alarming inability to appreciate his role as an expert and the accompanying privilege to provide opinion evidence."
The judge said he gave no weight to testimony from Dr. Davis, who was described as "unreliable, argumentative, defensive, non-responsive, and prone to rambling discourses that were not relevant to the questions posed in cross-examination."
Asked to leave the courtroom so that counsel could argue about questions to be put to him, the justice said Dr. Davis was seen peeking into the courtroom and listening to the discussion.
"He was again asked to leave. In spite of these instructions given to him, Dr. Davis hovered within hearing distance and, on four occasions, stuck his head into the courtroom to hear what was occurring."
The justice was appalled.
"Dr. Davis attempted to inject levity to the proceedings when he was introduced to the court — his reference to scotch can only be taken as an attempt to be humorous," Justice Dley wrote.
"However, these are serious and solemn proceedings and should be treated as such. His opening comments were unnecessary and unhelpful. Dr. Davis’s refusal to remove himself from earshot of the court proceedings despite repeated requests was reprehensible. His conduct simply confirmed a lack of respect for court proceedings."
Pushor Mitchell partner Paul Mitchell, Q.C. has extensive experience with brain injury, spinal injury, death claims, and other catastrophic injury claims, as well as medical negligence claims.
He acts for injured clients all over BC and Alberta, and will not act for ICBC or any other insurance company.
For more information on this article, or for a confidential discussion of your injury claim, contact Paul Mitchell, Q.C. at 250-869-1115 (direct line), or at [email protected]
