Court accepted medical opinions only to the extent that they were the same
The BC Supreme Court, in dealing with conflicting medical opinions in a personal injury case, has decided to accept the experts’ opinions to the extent that they were the same and rule against the plaintiff to the extent that the opinions differ.
In Djukic v. Geirsdottir, 2022 BCSC 1026, Tatjana Djukic sustained injuries and losses as a result of three motor vehicle accidents in Vancouver. The first accident occurred in 2016 when Djukic was 24 years old and taking courses at Rhodes Wellness College and Douglas College. She was also working part-time as a unit clerk at Royal Columbian Hospital. After the first accident, she suffered from neck pain, lower back pain, headaches, anxiety, and poor sleep, but generally she did not have any difficulties with performing her work.
On January 12, 2018, Djukic was involved in a second motor vehicle accident. While she did not sustain new injuries from the second accident, her existing injuries worsened. Her performance as a unit clerk at the hospital also started to decline and she stopped attending classes at the colleges.
A few months after the second accident, a vehicle collided with Djukic’s stationary car. Her head hit the steering wheel and she was later diagnosed with a concussion. Following the accident, she discontinued her studies and changed jobs. Djukic brought a claim for damages, asserting that she suffered permanent loss of function and that her planned career path as a counsellor had been derailed as a result of the accidents. She claimed that the award for loss of earning capacity should be at least $1 million.
The defendants, on the other hand, argued that Djukic failed to mitigate her losses and that she was able to work full-time for two years after the third accident, so they suggested a more modest award for future loss of earning capacity.
Conflicting medical opinions
The expert medical opinions of Dr. Kim Waspe and Dr. David Lispon were offered at trial. Dr. Waspe was Djukic’s treating physical medicine and rehabilitation specialist, while Dr. Lispon assessed Djukic upon the request of the defendants. Neither doctor was cross-examined on their opinion.
The defendants accepted the opinions of Dr. Waspe as stated in her report, and the plaintiff likewise accepted Dr. Lispon’s opinions as stated in his report. However, the court found that the two doctors did not offer the same diagnoses or prognosis for Djukic’s condition.
Dr. Lispon said that Djukic appeared to have chronic pain difficulties, but he thought these had a “predominantly non-physical basis,” so he recommended that a mental healthcare assessor to also provide inputs on Djukic’s condition. On the other hand, Dr. Waspe believed there was potential for further improvement of the plaintiff’s headaches and “that with appropriate care for the next 2-3 years all herald a more controlled course of headache management once tailored prevention or intervention is undertaken.”
The challenges in weighing expert evidence that is not tested by cross-examination was discussed in Yip v. Chin, 2009 BCSC 451, where it was held that “inherent in the fact that evidence has been tendered by an expert, is the proposition that the trier of fact is generally neither conversant nor familiar with the subject matter of the evidence and lacks the independent means by which to weigh or measure the merits of two competing views.”
The court in Yip v. Chin also ruled that there was “no inflexible rule that can be established as to the significance of a party failing to cross-examine an expert.”
In this case, the court decided to accept the experts’ opinions to the extent that they were the same and to the extent the factual foundations of those opinions had been established. As to the extent their opinions differed, the court concluded that Djukic failed to meet the evidentiary burden to prove her losses. The court accepted that Djukic suffered soft tissue injuries to her neck and back, and headaches due to the first accident, and her activities were limited as a result. She also continued to have pain and headaches until her injuries were aggravated by the second and third accidents.
Failure to mitigate
The defendants argued that Djukic failed to mitigate her losses because she did not receive treatment for her lower back pain that was recommended by her treating neurosurgeon. The court ruled that the defendants failed to establish a failure to mitigate because “there is no evidence that there was some likelihood that Djukic would have received substantial benefit from such a treatment.”
The defendants further argued that Djukic failed to follow the recommendation of a treating occupational therapist to pursue counselling. The court, however, said that it was not clear from the evidence that the therapist “recommended” psychological counselling. As a result, the court found that the defendants have failed to discharge the burden to prove on a balance of probabilities that Djukic failed to mitigate her losses.
Considering all the circumstances and the evidence submitted at trial, the court ruled that the defendants were liable to pay $250,340.65, which consisted of non-pecuniary damages, past loss of earning capacity, future loss of earning capacity, special damages, and future cost of care.