Placing Your Life Under a Microscope During Personal Injury Litigation

Injured individuals involved in personal injury litigation will have their lives placed under a microscope by opposing counsel and insurance companies. A significant amount of private and personal information must be produced in a lawsuit. 

Personal injury claims are proven with records and oral evidence. Records and documents often support the testimony of key witnesses such as the parties and expert witnesses who provide necessary opinions regarding the Plaintiff’s case.

What kinds of records must be disclosed?

Rule 30.02 of the Rules of Civil Procedure states that every document relevant to any matter in issue in an action that is in the control or power of a party to the action shall be provided.

“Document” is broadly defined to include a sound recording, videotape, film, photograph, chart, graph, map, plan, survey, book of account, and data and information in electronic form.

A document is “relevant” if it tends to prove or disprove an issue in the lawsuit. For example, a medical record may prove a Plaintiff’s injury.

The pleadings (the Statement of Claim and Statement of Defence) set out the issues in the lawsuit. The Statement of Claim contains factual allegations that must be proven for the Plaintiff to be successful.

In personal injury actions of all types (such as car accidents, medical malpractice, slip or trip and fall), the Statement of Claim will invariably allege that the Defendant’s negligence caused the Plaintiff to sustain an injury, whether it be physical or psychological, and the Plaintiff sustained damages as a result of the injury. The alleged damages often include non-pecuniary general damages for pain and suffering and pecuniary damages for a loss of income as a result of being unable to work, being unable to complete housekeeping and home maintenance chores, and future medical care costs. (For a comprehensive overview of the types of damages, see Hillier & Hillier’s article: “What Types of Compensation Can You Receive from a Motor Vehicle Accident Lawsuit”).

As such, the issues in a personal injury lawsuit are typically as follows:

·         Negligence: did the Defendant owe a duty to take reasonable care to avoid harm to the Plaintiff? Did the defendant breach the standard of care by failing to take reasonable care? In most medical malpractice claims and motor vehicle accident claims, whether the Defendant owed the Plaintiff a duty of care is not contentious. Defendant doctors owe a duty of care to their patients. Motorists owe a duty to other motorists. Occupiers or owners of premises typically owe a duty to patrons and customers, subject to a few exceptions not fully explored in this article. Whether the Defendant breached the standard of care is often disputed.

·         Causation: did the Defendant’s breach of the standard of care (failure to take reasonable care) cause the Plaintiff’s injury and damages?

·         Remoteness: related to the issue of causation is the concept of remoteness, which asks whether the Plaintiff’s injuries were a reasonably foreseeable consequence of the Defendant’s negligence. Defendants will not be liable for injuries or damages that are too remote, or in other words, are not a reasonably foreseeable consequence of their negligence.

·         Damages: what injuries and damages were caused by the Defendant’s negligence? What is the quantum/amount of the Plaintiff’s general damages for pain and suffering? What is the amount of the Plaintiff’s income loss or future medical needs?

The Plaintiff in a personal injury lawsuit will need to gather all documents that tend to prove or disprove the above issues, or in other words, are relevant to the above issues.

Documents Relevant to Proving the Defendant’s Negligence

In motor vehicle accident cases, relevant documents typically include but are not limited to the police file, which may contain statements from the parties or other witnesses as to how the accident occurred, airbag crash module data revealing the speed/braking of the vehicles at impact, dash cam footage if it exists, property damage photos of the vehicles, and possibly even the vehicles themselves. Plaintiff’s counsel will typically write for these documents or bring a Rule 30.10 motion requiring the investigating police force to produce such documents.

In medical malpractice claims, medical records detailing the allegedly negligent treatment will need to be produced. In some cases, any diagnostic images obtained during an invasive procedure, such as gastroscopy images where a tumour or condition was not detected, may need to be produced.  

In slip & fall or trip & fall cases, the Plaintiff will have ideally obtained photographs of the hazard on a property (for example ice, hole, trip ledge) that caused his/her fall. Plaintiff’s counsel will also attempt to obtain video footage of the fall, where possible, and photos of the Plaintiff’s footwear worn at the time of the accident.

The above is not an exhaustive list of relevant documents in establishing the defendant’s negligence. One could provide an endless list of examples. The main principle is that if a document is relevant in that it proves or disproves the defendant’s negligence, then it must be disclosed.

Documents Relevant to Proving Causation, Injury, and Damages

Typically, the majority of documents and records produced in a lawsuit relate to the issue of proving what injuries and damages were caused by the Defendant’s negligence and the extent of damages, and include but are not limited to: 

·         The Plaintiff’s medical records from a family doctor for three years pre-accident to present

and on an ongoing basis. In some cases, the Plaintiff may need to produce records

further back. Pre-accident medical records are relevant to determining whether the

Plaintiff had pre-existing medical issues that may have limited their ability to earn income

regardless of the Defendant’s negligence. Pre-existing medical records may also be

relevant where there is some overlap between the Plaintiff’s injury caused by the

Defendant, and pre-existing injuries, such as where a Plaintiff experienced low back pain

which was worsened by the Defendant’s negligence. This is common in motor vehicle

accident claims.

·         Medical records from all treating specialists and hospitals attended.

·         Physiotherapy records.

·         Chiropractic records.

·         Psychological/Psychiatry records particularly where the Plaintiff alleges a psychological

injury.

·         Other rehab-related records (Osteopath records, massage therapists, personal trainer

records).

·         Income tax returns and pay stubs to allow for a calculation of the Plaintiff’s income

losses, if any. This includes corporate tax returns and supporting financial statements and

documents if the Plaintiff ran a corporation.

·      Employment files including performance reviews to assess the Plaintiff’s employment

prospects but for the accident.

·      Insurance policies such as long-term disability or short-term disability policies and a

summary of benefits received under these policies. The Defendant is entitled to a credit

for such benefits paid to the Plaintiff against an income loss award, particularly in motor

vehicle accident claims.

·         Accident Benefits files which may include medical assessments completed at the request

of the accident benefits insurer.

The above is not an exhaustive list of records that may need to be produced in a lawsuit. Each case is different and involves different issues with varying requirements for disclosure of documents. Typically, Plaintiff’s counsel will write for the above documents.

In addition to the above, a Plaintiff will also need to attend an examination for discovery and be asked questions by the Defendant’s lawyer who has reviewed all relevant documents. Examinations for discovery allow the parties to discover the other side’s case and are more thoroughly discussed in Hillier & Hillier’s article “Examinations for Discovery – What to Expect?”

How are Documents Disclosed?

Pursuant to Rule 30.03(1) the parties must prepare and disclose an Affidavit of Documents consisting of three schedules:

·         Schedule A Documents: documents that are in the party’s possession, control, or power and that the party does not object to producing. As per the above, relevant documents must be disclosed, whether harmful or beneficial to the party’s case. If a document is relevant, it will typically be listed as a Schedule A document. The party’s lawyer will complete the Affidavit of Documents and often attach the relevant Schedule A documents to the Affidavit. In practice, Schedule A documents are often served (provided to the other side) before an Affidavit of Documents is prepared.

·         Schedule B Documents: relevant documents that are or were in the party’s possession, control or power, but over which the party claims privilege (ie… litigation privilege, settlement privilege, or solicitor client privilege). Although these documents are relevant to a case, they are shielded from disclosure by privilege, which aims to protect other interests than full disclosure. For example, communications between a party and their counsel, although relevant, should not be disclosed on the basis that they are protected by solicitor-client privilege. The concept of privilege is a large topic, not fully discussed in this article.

·        Schedule C Documents: relevant documents that were formerly in the party’s possession, control or power, but are no longer in the party’s possession, control or power, whether privilege is claimed for them or not, together with a statement of when and how the party lost possession or control of or power over the documents and their present location.

·         Finally, the Affidavit of Documents will also contain a statement that the party has never had in the party’s possession, control or power, any document relevant to any issue other than those listed in the Affidavit.

Note that irrelevant documents need not be disclosed, although whether a document is relevant or not is often a controversial topic.

As can be seen from the above, the law values full disclosure of relevant documents. This is to enable the parties to fully discover the other party’s claim before trial. This enables both parties to have a level playing field and know the case they have to meet and avoids trial by ambush. A Defendant should not have to attend trial without knowing what documents a Plaintiff intends to rely upon, or the contents of those documents. Likewise, a Plaintiff should not have to attend trial without knowing upon which documents the Defendant intends to rely in advancing his/her defence. The disclosure of documents also facilitates settlement before trial, as the parties to an action will learn the strengths and weaknesses of their respective cases.

The requirement to disclose all relevant documents also prevents parties from cherry-picking favourable documents and concealing harmful documents, a deceitful practice which prevents the trier of fact (judge or jury) from arriving at the truth and reaching a fair and just verdict.

Consequences for Not Disclosing Relevant Documents?

The failure to disclose relevant documents may lead to significant sanctions such as:

·         A Court may order the production of a further and better Affidavit of Documents and likely

award costs of the motion against the party who failed to disclose all documents.

·         If a party fails to disclose or produce a document that is favourable to the party’s case,

they may not rely on that document at trial except with leave of the trial judge.

·         If the party fails to disclose or produce a document not favourable to the party’s case, the

court may make such an order as is just in the circumstances, such as increased costs,

or that a witness re-attend for cross-examination, dismissing the action or defence, or

revoking or suspending the right to initiate or continue an examination for discovery.

Failing to disclose relevant documents not favourable to a party’s case will not only harm the case, but as well the reputation of the lawyer.

Saving Grace?

While a Plaintiff may feel discouraged by the disclosure requirements in commencing a lawsuit, and the invasion of privacy in disclosing personal documents like medical records, there is one important limitation that precludes the dissemination of such materials.

Rule 30.1.01 of the Rules of Civil Procedure invokes the Deemed Undertaking rule. This rule imposes a deemed undertaking on all parties that any documents/evidence obtained through the discovery process will not be used by the parties for any other purpose than in pursuing the proceeding in which the documents/evidence was obtained. However, the protection of this rule is lost when the documents are filed as evidence with the court and become a public record.

An injured Plaintiff or a defendant may have valid privacy concerns with disclosing numerous personal documents. However, the law is clear that full disclosure of such documents outweighs these concerns. Injured individuals should preserve any documents that they have gathered and which they believe could be relevant to their case. If you have been injured by someone else’s negligence, it is imperative to retain a personal injury lawyer that will gather relevant documents and ensure you meet your disclosure requirements. The lawyers at Hillier & Hillier are experienced litigation lawyers that can guide you through all complexities of the legal process from start to finish.