Ruling sees no undue hardship to injured man, a relatively high wage earner
In a vehicular accident case, the British Columbia Supreme Court dismissed the injured party’s application to call four expert witnesses and to exclude disbursements incurred by a vocational and job market analyst, an occupational therapist, an actuary, and an orthopedic surgeon.
On Oct. 25, 2018, at the intersection of Rawlison Crescent and Glover Road in Langley, BC, a motor vehicle operated by the first defendant and owned by the second defendant struck a vehicle in which the plaintiff was a passenger.
The plaintiff in Herzig v Golowko, 2026 BCSC 724, injured his right shoulder and had a concussion due to the motor vehicle accident. He filed a civil claim on Nov. 27, 2019. An orthopaedic surgeon saw him on Mar. 15, 2023, and produced an expert report on Mar. 20, 2023.
Under s. 5(6) of the Disbursements and Expert Evidence Regulation, BC Reg 210/2020 (DEER), the plaintiff requested the exclusions of:
- the disbursements incurred by the vocational and job market analyst, the occupational therapist, and the actuary when providing reports and testifying in the case
- the disbursements incurred by the orthopedic surgeon, who might need to provide a responsive report and testify
The plaintiff also asked for permission to tender the evidence of four experts at trial. The defendants opposed the requested relief.
Injured party’s application denied
First, the Supreme Court of British Columbia addressed whether dismissing the plaintiff’s application to exclude the disbursements would subject him to undue hardship.
The court ruled that the plaintiff failed to provide adequate evidence to establish that refusing to exclude the disbursements would prevent him from incurring them without undue hardship.
The court found that the plaintiff’s affidavit failed to prove undue hardship because it did not establish what he would have to sacrifice if he had to fund some of the experts’ disbursements.
The court emphasized that the orthopaedic surgeon opined that the plaintiff could continue his current work. The court described the plaintiff as a relatively high wage earner. The court noted that:
- The plaintiff’s hourly income would increase over time
- His assets included a home he purchased from his parents for $400,000, with an $80,000 down payment
- His debts included payments for his car and the mortgage on his home
Next, the court held that the plaintiff’s application to call four expert witnesses at trial should fail for similar reasons as the other application.
The court concluded that the expert reports of the vocational and job market analyst, the occupational therapist, and the actuary would not benefit the plaintiff’s case.
The court reached this conclusion because the plaintiff did not complete the physiotherapy recommended by the orthopedic surgeon and did not undergo a magnetic resonance angiogram, which would show whether surgical intervention was necessary.
Until the plaintiff took those steps, the court would find evidentiary gaps in the plaintiff’s prognosis, which would prevent an analysis of whether disallowing additional expert evidence would subject him to prejudice disproportionate to the benefit of not increasing the complexity and cost of the proceeding.
The court saw no indication that the plaintiff’s condition would deteriorate, which would warrant a functional capacity evaluation, a vocational assessment, or an economic report.
