Joe Thorne and Jessica Habet

How far can an insurer dig into the Plaintiff’s history to defend a claim? And how much information is an insurer entitled to have in order to do so?

In English v. House,¹ the Newfoundland and Labrador Supreme Court, Trial Division considered those issues and the limits of production in the case of successive and cumulative motor vehicle accidents.

Background

The plaintiff, Ms. English, was involved in four motor vehicle accidents in 2011, 2012, 2013, and 2014.

The Defendant in the 2013 accident requested production of certain medical information related to the other accidents. Some requests were denied. The dispute centered on whether the Plaintiff should produce factual portions of counsel’s claim letters from the prior accidents, and the chart and any report of the treating psychiatrist.

The Defendant applied to the Court for production of:

(i) A complete copy of the medical information including physiotherapy reports, hospital reports and doctors’ reports relating to the collision in which Ms. English was involved in June 2011;

(ii) A copy of the factual portions of claim demands from any and all civil claims involving Ms. English arising from the accident in June 2011;

(iii) A complete copy of the medical information, information including physiotherapy reports, hospital reports and doctors’ reports relating to the collision in which Ms. English was involved that occurred in August 2012;

(iv) A copy of the factual portions of claim demands made on behalf of Ms. English for the accident of August 2012;

(v) A complete copy of medical information, including physiotherapy reports, hospital reports and doctors’ reports, along with any police reports in Ms. English or her solicitor’s possession related to the accident on June 14, 2014; and

(vi) A copy of Ms. English’s psychiatrist’s chart and any reports that are derived from it including the report that was expected by her counsel in September 2016.²

The two primary issues before Justice Orsborn on the application were:

1. must the Plaintiff produce the factual portions of her claims demands for the prior accidents?; and
2. must the Plaintiff produce copies of her psychiatrist’s chart and any reports deriving from it?

Application judge’s decision

Exercising judicial discretion: a question of fairness

When can the court exercise its discretion to order production of documents?

Two factors apply: the court’s inherent jurisdiction and Rule 32 of the Rules of the Supreme Court, 1986.

First, the Court has inherent jurisdiction to ensure that all relevant documents are before it in order to determine the issues between the parties properly and fairly.

The significant issue was the application of Rule 32.07:

32.07. (1) The Court may order the production, for inspection by any party or the Court, of any document relating to any matter in question in a proceeding at such time, place and manner as it thinks just.

…

(3) An order for the production of any document for inspection by a party or the Court shall not be made unless the Court is of the opinion that the order is necessary for disposing fairly of the proceeding or for saving costs and is not injurious to the public interest. 

Justice Orsborn affirmed the Court of Appeal’s interpretation of the test under Rule 32.07 in Morrissey v Quinlan:³

1. the document must be relevant to a matter in question in the proceeding;
2. the document must be “necessary for disposing fairly of the proceeding or for saving costs”; and
3. the document must not be covered by privilege.⁴

With respect to the three criteria, it is a sequential analysis:

1. if the document is not relevant to the matter, it cannot be necessary;
2. if the document is relevant, is it also necessary for the disposition of the matter;
3. if the document is both relevant and necessary, it must be produced subject to a determination of any issue of privilege.⁵

Painting the picture: producing the relevant information

Justice Orsborn then went to describe two “pictures” – a snapshot of reality and a hypothetical. The first picture is the present condition and circumstances of the Plaintiff. The second picture is what the Plaintiff’s condition and circumstances would have been if the accident had not occurred. According to Justice Orsborn, the Defendant is liable to compensate the Plaintiff for the difference in the two “pictures.”

The Plaintiff claimed general damages and confirmed that there was no independent claim for psychological injuries. She also claimed for loss of income resulting from inability to attend school due to numerous medical and therapeutic appointments. The Plaintiff claimed that attending those appointments prevented her from completing a degree and delayed her in securing a higher-paying job.

Medical information related to the 2011, 2012, and 2014 accidents

Justice Orsborn had no difficulty in concluding that medical information regarding the other accidents was producible as it was relevant and necessary.

Facts from the 2011 and 2012 accidents claims demands

Justice Orsborn concluded that while the factual statements set out in prior claims demands were relevant, they were not necessary. Justice Orsborn held that the same information that lay within those claims demands could be found in the complete medical reports.

Because Justice Orsborn held that the necessity requirement was not met, he did not go on to consider any claims of privilege. He did note, however, that claims demands are subject to settlement privilege.⁶

Psychiatric information

Justice Orsborn found that the psychiatric chart and reports did not need to be disclosed because the Plaintiff was not claiming a loss of income arising from a psychiatric condition.

However, because the Plaintiff claimed a loss of income arising from an inability to attend school due to the numerous appointments, Justice Orsborn ordered that the number and dates of psychiatric appointments be disclosed. Justice Orsborn warned that as the matter progressed, the Defendant could apply for more information regarding the Plaintiff’s psychiatric condition to determine what effect, if any, the condition had on her claim.⁷

Lessons for insurers

The information must be original

To meet the necessity requirement, a document cannot offer duplicate information. Justice Orsborn held that the evidence relating to the Plaintiff’s condition arising out of the prior accidents was available in the medical information either already produced or ordered to be produced in this decision.

If an insurer wants a document produced, it must ensure that the information within that document is not only relevant but new to the case.

A non-producible document may become producible

As a case progresses, new applications can be made for document disclosure. Justice Orsborn made this clear when he held “it may be that as this matter progresses and the claim becomes more delineated, the defendant may wish to seek further information…”

And of course, every party has a continuing obligation to disclose relevant information as the matter unfolds.

Necessity is the mother of production

The truth-seeking function is not achieved by production of documents that add no further information. While privileged documents do not need to be disclosed, the parties must still show the existence of the document in their itemized list of documents. The issue of privilege does not come into play unless the necessity requirement is satisfied. Without satisfying that requirement, Justice Orsborn found that it is “not necessary to consider a balancing of the disclosure and privilege interests.”

¹ 2017 NLTD(G) 93 (“English“)
²English, para 6.
³Morrissey v Quinlan, 2002 NLCA 58.
⁴English, para 9.
⁵English, para 10.
⁶English, paras 20 and 21.
⁷English, paras 22 – 24.