DAO v HUSSAIN, 2015 ABCA 372


5.41: Medical examinations
8.16: Number of experts

Case Summary

The Respondent had sought an Order pursuant to Rule 5.41 that would require the Appellant to be examined by an orthopedic spine specialist. The Appellant had previously been examined by two orthopedic surgeons, and two other experts in separate areas. One expert recommended that the Appellant obtain an opinion from someone who specialized in the spine. The Appellant disputed the Decision of the Chambers Judge who ordered, pursuant to Rule 5.41, that he be examined by an orthopedic spine specialist. The Appellant argued that an assessment by an orthopedic spine specialist could only address his general medical condition. The Respondent’s position was that the opinion of a specialist was relevant because the Appellant’s condition could have been the cause of recurrent injuries, but these recurrent injuries were not limited to the motor vehicle accident. The Respondent’s position was based on what was stated in a previous expert report. The Court of Appeal dismissed the Appeal, and upheld the Chambers Judge’s Decision to order an examination by a spine specialist pursuant to Rule 5.41. The Court of Appeal agreed that an opinion from an orthopedic spine specialist would be helpful to the Trial Judge on matters of causation, seriousness of injuries and damages. The Court of Appeal also referenced Rule 8.16, which provides that more than one expert give opinion evidence on one subject on behalf of the same party, if the Court permits.

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