[1] The appellant, Ramesh Gopie, was injured in a motor vehicle accident on November 1, 2005. The driver of the other vehicle was uninsured, so Mr. Gopie’s own insurer, the respondent Economical Mutual Insurance Company, defended the action as an uninsured motorist carrier. Liability was not in dispute. The appellants – Mr. Gopie and his family – sought in excess of $10 million in damages, arguing that Mr. Gopie suffered ongoing symptoms from the mild traumatic brain injury he sustained in the accident.
[2] Following an eight-week trial, the jury returned a verdict of about $186,000, including pre-judgment interest – an amount significantly less that the respondent’s pre-trial settlement offer of $500,000, plus costs. Once the damages, pre-judgment interest, and the costs awarded to the appellants were set off against the costs the trial judge awarded to the respondent, the appellants recovered nothing and owed the defendants a further $22,406.37 in costs.
[3] The appellants argue that there are two reasons for the jury’s modest assessment of Mr. Gopie’s damages and that they require a new trial. First, the jury was allowed to effectively judge the character of Mr. Gopie and whether he was a person who was generally untruthful, and, therefore, could not properly assess whether the evidence about his ongoing symptoms following the accident should be accepted or rejected. They say this was the result of the trial judge improperly exercising her gatekeeping function in permitting Dr. Furlong, one of the respondent’s two defence psychiatrists, to impugn Mr. Gopie’s character and the trial judge having improperly told the jury that they could use the evidence of Mr. Gopie’s convictions arising out of events following the accident and other unlawful conduct for the purpose of assessing Mr. Gopie’s credibility. The appellants argue that, together, these errors resulted in a “character assassination”.
[4] Second, the jury was led astray on the proper test for causation and the standard of proof applicable to claims for damages in the future by the trial judge’s charge on what she described as “preliminary questions” that the jury may wish to consider before reviewing the Questions for the Jury.
[7] The respondent put the evidence of Mr. Gopie’s unlawful conduct to Dr. Furlong, as hypotheticals, and asked him whether such conduct, if it had occurred, would affect his psychiatric assessment of Mr. Gopie. In responding to whether it would affect his assessment if Mr. Gopie’s licence were suspended on medical grounds and Mr. Gopie continued to drive, Dr. Furlong offered a number of possible interpretations including that Mr. Gopie had told stories to the doctors on whose advice his licence was suspended that were not true. Over Mr. Gopie’s trial counsel’s objection, the trial judge permitted respondent’s counsel to continue and confirm with Dr. Furlong whether such conduct would affect his psychiatric assessment of Mr. Gopie.
[8] We agree with the appellants that Dr. Furlong’s response including that Mr. Gopie might have told stories to the doctors that were not true was not proper expert evidence. In her summary of Dr. Furlong’s evidence in her charge to the jury, the trial judge made no reference to this response. Referring to his response and telling the jury to disregard it may well have drawn more attention to it. Mr. Gopie’s trial counsel made no objection to the manner in which the trial judge summarized Dr. Furlong’s evidence. We are not persuaded that Dr. Furlong’s response or the manner in which the trial judge charged the jury in relation to Dr. Furlong’s evidence warrants a new trial.
[13] First, there is no basis to interfere with the trial judge’s ruling permitting two psychiatrists to testify for the respondent. She considered and fulfilled her gatekeeper function and provided a careful and comprehensive written ruling. Among other things, she considered the quantum of damages claimed, that the alleged psychological issues were a significant aspect of the claim, and the balance in the number of experts called by each side. The trial judge concluded that “overall [the two psychiatrists’] perspectives were quite different, and their evidence would not be unduly repetitive and would be of assistance to the jury.” Further, there was no prejudice to the appellants if the two psychiatrists were permitted to testify, whereas the respondent might be prejudiced if they were not both permitted to do so.
[14] Second, an opinion contained in a medical record may be admissible as a medical report if the report is signed by the practitioner and leave of the court is obtained: Evidence Act, s. 52(2). The trial judge correctly exercised her gatekeeper function with respect to the admission of medical opinions contained in the medical records and reasonably concluded that they were not admissible in the absence of attendance and testimony from the practitioner.
