COURT CASES on EXPERT EVIDENCE
Expert evidence, whether in the form of written expert reports, or expert testimony in court, can play a vital role in the Court’s determination of the value of ICBC claims, particularly in the more serious cases. Part 11 of the British Columbia Supreme Court Civil Rules discusses many rules for such things as expert evidence, expert reports, duties of experts, and appointment of experts.
Quite often, expert reports will be served too late, or expert reports will not properly conform to the appropriate Rules. In such cases, the Court will need to make a determination as to whether to admit the expert report into evidence, after considering such factors as new facts coming to light, prejudice, and the interests of justice. For example, a Plaintiff’s expert report served 82 days before trial, rather than the required 84 days, will likely be admitted in the interests of justice, and as it would not be prejudicial to the Defendant. However a Plaintiff’s expert report served on the eve of trial will likely not be admitted, as it would be too prejudicial to the Defendant, who would not have the opportunity to prepare a responding report.
The Court will sometimes place very little weight, if any at all, on expert reports where the experts are seen as advocating for their client, rather than providing an unbiased report for the Court to consider. Examples of “advocating” include making comments on the credibility of the Plaintiff, focusing on inconsistencies in the Plaintiff’s history of events without mentioning all the consistencies, or expert testimony where the expert assumes the role of an advocate rather than that of a disinterested and detached expert.
ULTIMATE ISSUE RULE
An expert report can be ruled to be inadmissible if it offends the “ultimate issue” rule. In other words, if portions of the report answer the very issue that the Court is to decide, then the report can be held to be inadmissible.
In Turpin v. Manufacturers Life Insurance Company, the Court ruled a medical report to be inadmissible for many reasons, including that it offended the “ultimate issue” rule.
 The plaintiffs further object that the proposed evidence of the witness purports to answer the very question which must be left to the court. It therefore offends the “ultimate issue” rule.
 I agree.
 Under current law, an expert witness is not necessarily prohibited from expressing an opinion on an ultimate issue.
The respondent does not argue that psychiatric evidence bearing on a witness’s behaviour is for that reason inadmissible. His objection is that “the opinion of Dr. Maddess went to the very root of the issue before the learned trial judge” and that “allowing that opinion usurped the function of the trial judge”: the so-called “ultimate issue rule”. However, the jurisprudence does not support such a strict application of this rule. While care must be taken to ensure that the judge or jury, and not the expert, makes the final decisions on all issues in the case, it has long been accepted that expert evidence on matters of fact should not be excluded simply because it suggests answers to issues which are at the core of the dispute before the court: Graat v. The Queen, 2 S.C.R. 819. See also Khan v. College of Physicians and Surgeons of Ontario, (1992), 9 O.R. (3d) 641 (C.A.), at p. 666 (per Doherty J.A).
 In this case, the proposed witness does not “suggest” answers to issues before the court, the proposed witness answers the very question this court is called upon to decide.
WHEN the EXPERT DOES NOT PERSONALLY EXAMINE the CLAIMANT
Although the Court will normally allow an expert report to be admitted where the claimant has not been personally examined by the expert, usually little weight will be given to such a report.
In Rizzotti v. Doe, the Plaintiff suffered injuries in a motor vehicle accident, and brought an ICBC claim for damages. The Plaintiff relied on an expert report of a psychiatrist, and the Defendant produced a report from one of their own psychiatrists which disputed the findings of the Plaintiff’s psychiatrist. The expert for the defense never did personally examine the Plaintiff, and accordingly the report was given little weight by the Court.
 Dr. Levin is a psychiatrist tendered by the defendants as rebuttal evidence to the opinion of Dr. Anderson. The plaintiff objected to the admissibility of Dr. Levin’s report during this trial. I declared a voir dire to allow the plaintiff to cross-examine Dr. Levin and make argument as to the admissibility of the report. I ultimately found that the report was admissible, however I initially told counsel that I would be putting very little weight on the report as Dr. Levin did not interview the plaintiff.
 I have already explained that I am putting little weight on Dr. Levin’s report because he did not interview the plaintiff. Dr. Levin himself testified that he could not do a proper assessment without interviewing the plaintiff.
FAILING to MEET DEADLINES
The Rules pertaining to the exchange of expert reports dictate that a report must be served within 84 days of trial, with any responding reports to be served within 42 days of trial. If these deadlines are not adhered to, it is likely that the report will be declared to be inadmissible.
In Neyman v. Wouterse, the Plaintiff was injured in a collision, and brought an ICBC claim for damages. ICBC”S lawyer sought to use only one expert report, however served this report well beyond the time period allowed for service of expert reports, and made the application to admit the report on the third day of trial. ICBC’S lawyer argued that it would be severely prejudicial not to allow the report into evidence, as it was the only report that the Defendant had. The Court, however, rejected this submission, holding that it would be too prejudicial to the Plaintiff’s interests to admit the report into evidence, as the Plaintiff would have not have sufficient time to be able to properly prepare for cross-examination.
 I am satisfied that plaintiff’s counsel has, through no fault of his own or of his client, not been able to properly consult with his client’s medical experts to determine the answers to those questions. It is also clear to me that standing the trial down for a half day or day or two does not afford the plaintiff and her counsel the opportunity to properly respond to Dr. Bishop’s report, even if it was admitted on a redacted basis.
 In all, I am satisfied, from counsels’ submissions and from the nature of the evidence given by the medical experts to date, that plaintiff’s counsel may well have approached the preparation and prosecution of his client’s case quite differently if he had known that Dr. Bishop’s report was to be admitted.
 I am also, respectfully, unable to agree with the submission of counsel for the defendant that two questions put by plaintiff’s counsel to Dr. Van Rijn concerning palpation and the value of an opinion from an occupational therapist constitute an estoppel that works against the plaintiff’s position on this application. I accept the submission of plaintiff’s counsel that he posited those two questions, from his own experience and based in part on his review of medical texts, as a precautionary step to try to protect his client’s interests in the event that Dr. Bishop’s report was admitted without terms. In the context of this case, I am satisfied that those two questions cannot stand as an appropriate substitute for the plaintiff’s right to prosecute a properly prepared case.
 Lastly, turning to sub-rule (c), as Savage J. noted in Perry, there must be some “compelling analysis” why the interests of justice require the Court to exercise its discretion to allow the “extraordinary step” of abrogating the requirements of the Rules. None was presented by the defendant in submissions. Moreover, I find that the circumstances of this case, particularly the dilatory conduct of the defendant, do not compel me to exercise my discretion under sub-rule (c) to admit Dr. Bishop’s report into evidence without an adjournment on terms. To otherwise admit Dr. Bishop’s report would not be in the interests of justice.
In Crane v. Lee, the Plaintiff properly served an expert report prior to the 84 day deadline. ICBC’S lawyer obtained a report contradicting this report, yet failed to serve it within the stipulated 84 day time period. The lawyer for ICBC argued that it was a “responsive” report, however the Court rejected this notion, and ruled the report to be inadmissible.
 At the opening of the trial, counsel for the plaintiff objected to and sought a ruling on the admissibility of a medical report that the defendant intended to rely upon. The report had not been served within the 84 days required by Rule 11-6 (3) of the Supreme Court Civil Rules, B.C. Reg. 168/2009. Counsel for the defendant relied upon rule 11-6 (4), which reads:
(4) Unless the court otherwise orders, if a party intends to tender an expert’s report at trial to respond to an expert witness whose report is served under subrule (3), the party must serve on every party of record, at least 42 days before the scheduled trial date,
(a) the responding report, and
(b) notice that the responding report is being served under this rule.
 Rule 11-6 (4) is intended to apply only to evidence that is truly responsive or in rebuttal to specific opinion evidence tendered by the opposite party. It is not intended to provide defendants with a general exemption from the basic time limit for serving expert reports that is set out in Rule 11-6 (3). Defendants who delay obtaining or serving expert evidence until after the plaintiff’s opinions have been received, then attempt to introduce all of their expert evidence as response, do so at their peril.
 In this case, I found that the report was not limited to true responsive evidence. It stated the author’s opinion on the nature and cause of the plaintiff’s injury−the central issue that both sides had to address from the outset−and was based upon a review of all the medical records, including some not referred to by Dr. Field in his report. As such, I considered it to be a free-standing medical opinion that ought to have been served pursuant to Rule 11-6 (3). I ruled the report inadmissible, with the result that there was no expert evidence before me to contradict Dr. Field’s opinion.
In Perry v. Vargas, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages. The last business day before trial, counsel for the Plaintiff served a supplementary report on ICBC’S lawyer which bolstered the expert’s previous opinions, clarified earlier statements, and criticized the expert report of the defence. The Plaintiff argued that the report should be admitted into evidence as a supplementary report, or under the Court’s discretion. The Court rejected both lines of arguments, effectively holding that the discretion to admit into evidence expert reports that do not comply with the Rules must be exercised sparingly, and with appropriate caution.
 Rule 11-7(6)(b) focuses on whether there is prejudice to the party against whom the evidence is sought to be tendered. Of course there are cases where reports are delivered a few days late where there is no prejudice. This is not such a case. Delivering a new expert report without any notice well outside of business hours on a Friday evening before a trial commencing Monday morning places the opposing party in obvious difficulties. In my view there is some prejudice to the defendants given the untimely delivery of the Late Report.
 More generally, delivering expert reports on the eve of trial is antithetical to the purpose of the Rules regarding expert reports, which seek to ensure the parties have reasonable notice of expert opinions. Compliance with the Rules allows considered review of the expert opinions, the obtaining of important advice, and possible response reports. Under the former Rules, in Watchel v. Toby,  B.C.J. No. 3150, 33 M.V.R. (3d) 115, Kirkpatrick J., as she then was, excluded in its entirety a late report delivered 12 days before trial where there was insufficient time to obtain any opinion evidence to answer the report.
 In my view the discretion provided for in R.11-7(6)(c) must be exercised sparingly, with appropriate caution, and in a disciplined way given the express requirements contained in Rules 11-6 and 11-7. That is, the “interests of justice” are not a reason to simply excuse or ignore the requirements of the other Rules. There must be some compelling analysis why the interests of justice require in a particular case the extraordinary step of abrogating the other requirements of the Supreme Court Civil Rules. None was provided.
 In the circumstances, the Late Report is not admissible.
FACTUAL ASSUMPTIONS REQUIREMENT in EXPERT REPORT
When writing their report, experts must list the factual assumptions upon which their opinions are based. By not doing so, there is a risk that the report will be declared to be inadmissible by the Court, or that the report will have little weight attributed to it.
In Perry v. Vargas, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages arising therein. At issue was one of the Plaintiff’s expert reports, which the Court eventually attributed little weight to, ruling that the report did not properly list the facts upon which the expert opinion was based.
 I find it difficult to give much weight to Dr. Tesiorowski’s opinion with respect to causation. Most of the report appears to simply reiterate what she has been told by others. She was not in fact treating Ms. Perry for the complaints until the passing of Dr. Condon. She only did one physical examination. In the report she does not address any of the intervening events.
 In my opinion there is another more fundamental problem with Dr. Tesiorowski’s report. There is no reasoning linking the current complaints with the December 4, 2006 Accident. That is, she states a conclusion as quoted above but provides no insight into the reasons for that conclusion. I examine this matter in greater detail below.
 The report of Dr. Tesiorowski has another important failing. It refers to a history gained from Ms. Perry and others and then simply states a conclusion. To be useful an opinion must be more than a conclusory assertion on causation. In Montreal Light, Heat & Power Co. v. Quebec (Attorney-General) (1908), 41 S.C.R. 116 at 132, Idington J. said “I refuse to accept unless absolutely necessary the mere ipse dixit of any expert when presented for my acceptance merely as an act of faith, and without the aid of such reasons as his reasoning power, or means of, and result of the use of means of, observations may have developed”.
 The same kind of concern is noted by Binnie J., speaking for the court in R. v. J.-L.J., 2000 SCC 51 at para. 56,  2 S.C.R. 600. The opinion must assist the trier of fact to form an independent conclusion by “an act of informed judgment, not an act of faith”:
 As there is no reasoning linking the facts referenced in the medical report with the conclusory assertion on causation, I am unable to form an independent conclusion from this opinion. To accept the opinion would simply be a leap of faith, applying the logical fallacy of ipse dixit, in this context, “because she said it”.
 For all of these reasons Dr. Tesiorowski’s opinion is of little assistance to the court.
In Knight v. Li, the Court permitted the expert report in question to be admitted into evidence, however was critical at the same time. The Court commented on the factual assumptions requirement.
 I find that Mr. Gough gave his oral evidence objectively. He readily agreed to propositions put to him in cross-examination. I have no doubt that he fulfilled his obligations as an expert in giving his oral evidence. I also reach the same conclusion insofar as Mr. Gough’s report considered the speeds of the vehicles involved in the collision at the moment of impact. I do, however, have reservations about other aspects of the report.
 I accept that a careful reading of the report would reveal that the analysis is based on certain assumptions about Mr. Knight’s driving and that the conclusion he reaches about Mr. Li’s apparent perception-reaction time being so much greater than the average driver depends critically on those assumptions. But in my view it should not be necessary to have to tease out the implications of such limiting assumptions or for a trier of fact to depend on skilful cross-examination to draw out and make clear how limiting assumptions affect the opinions proffered.
 Our new Supreme Court Civil Rules codify the obligations of experts testifying in our Court. In my view, they restate obligations our law has long recognised. The Civil Rules require a clear statement of the facts and assumptions on which a report is based. It was incumbent on Mr. Gough to state clearly the assumptions on which his report was based. He did not do so. He did not provide me with an opinion of the effect of Mr. Li’s excessive speed on his ability to avoid the collision as he claimed. He gave me an opinion of Mr. Li’s ability to avoid the collision if certain assumptions favourable to Mr. Knight were made. He said nothing about being instructed to make those assumptions and nothing about the effect on Mr. Li’s ability to avoid the Accident if those assumptions did not hold.
 It must be remembered that Mr. Gough’s report is his evidence. In my view, the report as written did not comply with the requirements in the Civil Rules to state the facts and assumptions on which it is based. There is nothing improper in an expert accepting assumptions of fact that affect the opinions the expert provides, but they must be clearly stated. If they are not, there is a real risk that the trier of fact could be misled. In this case it required cross-examination to demonstrate the implications of the assumptions for the conclusions reached about Mr. Li’s ability to avoid the Accident. In my view, in this case, given the opinion being offered, the report should have clarified the effect of the assumptions about Mr. Knight’s driving on the conclusions about Mr. Li’s ability to avoid the Accident. By failing to do so, this aspect of the report descended into little more than a piece of advocacy.
ADMISSIBILITY of EXPERT REPORT from PREVIOUS PROCEEDINGS
In Hosking v. Mahoney, the Plaintiff was involved in three motor vehicle accidents. A medical report was used as a basis for settlement of the first two matters, but was not introduced by the Plaintiff as evidence at the trial of the third matter. ICBC’S lawyer wished to have the expert report admitted into evidence by using the expert report in cross-examination, which the Court allowed, despite the fact that the expert report did not meet the specific time notice requirements for admissibility.
 The plaintiff had some relevant pre-accident health problems, including problems with her knees which required surgical intervention, physiotherapy, and an exercise regime. By the time of the February 2004 accident, her evidence was that that the remaining problems were minor except when she engaged in prolonged activities.
 The plaintiff had been involved in two previous motor vehicle accidents, one in the late fall of 2000 and the other approximately eleven months later in October 2001. Both of the accidents resulted in litigation where the plaintiff sought compensation for injuries to her upper back, shoulders and neck. Both actions settled without trial in the fall of 2003. Her testimony is that by the time of the subject accident, her lower back complaints arising from the first two accidents had resolved by approximately 90% and had no effect on her functioning, either at work or at home. Similarly, by the time the previous actions were settled, she testified that her upper back and neck problems had essentially resolved with only occasional flare-ups, particularly one after falling in the summer of 2003.
 The plaintiff argues that the defendant ought not to be entitled to rely on the opinion letter of Dr. Parhar because he did not give the required notice of the intention to use the report as an expert’s opinion. Also, no witness at this trial has adopted the opinion of Dr. Parhar. Further, there is no evidence that the plaintiff’s condition before the motor vehicle accident of February 2004 was the same as she currently presents and that effectively negates the defendant’s submission.
 In response to the “intervening acts” argument, counsel submitted that the falls the plaintiff later suffered were not a new intervening injury but an aggravation of the injuries of which she was already complaining.
 I found the medical opinion of Dr. Gurdeep Parhar, the plaintiff’s attending physician for the first two accidents and the author of the medical/legal report of March 10, 2003, important and difficult to resolve with the evidence and submissions of the plaintiff that she had largely recovered prior to the February 2004 accident. This evidence was entered by the defendant when cross-examining the plaintiff and was not rebutted or varied by Dr. Parhar who was not called to testify. The court is entitled to draw an adverse inference when a witness who could provide relevant evidence on an issue before the court, is not called. In my view the defendant was entitled to rely upon the letter and opinion of Dr. Parhar without providing the usual notice. It was a report prepared for and at the request of the plaintiff and it was identified and portions adopted by the plaintiff in cross-examination. The plaintiff had the opportunity to call Dr. Parhar or evidence to rebut the opinion or to object to its introduction prior to its use in cross-examination.
The Court does not approve of situations where an expert, whether in the form of an expert report or expert testimony in court, is seen as advocating, rather than being impartial. When this occurs, little weight is given to the expert’s evidence, and the evidence can even be rejected outright.
Rule 11-2 of the British Columbia Supreme Court Civil Rules deals with the issue of expert advocacy.
In Moll v. Parmar, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages. ICBC’S lawyer sought to have the Plaintiff examined by a neuropsychologist. Prior to this, the expert for the defence wrote a very critical response to a report from the Plaintiff’s expert. The court dismissed the application for the independent medical exam, holding it would be inappropriate for the Plaintiff to be examined by an expert who had previously bordered on advocacy.
 Dr. Williams’ report emanated from a retainer letter wherein the pertinent paragraph stated simply that Mr. Moll was advancing a claim for a head injury in a highway collision and then stated: “I ask that you please kindly review the enclosed report of Dr. Jeffrey Martzke dated May 1, 2012, together with the enclosed documentation set out in the attached schedule “A”, with a view to discussing Mr. Moll’s claim with me.” The letter promised to forward Dr. Martzke’s raw test data, which was forwarded in due course and reviewed by Dr. Williams.
 Dr. Williams described the purpose of his report as responding to the reports of Dr. Martzke and Dr. Wallace (the plaintiff’s vocational consultant) and he said he limited his comments to aspects pertaining to the methods, procedures and process of the reports, as well as the sufficiency of the conclusions recommendations or diagnoses of Drs. Martzke and Wallace.
 Dr. Williams’ report is, however, a very rigorous critique of Dr. Martzke’s methods and testing, as well as his conclusions, and in my view does at least border on advocacy, as argued by Mr. Harris. Dr. Williams’ criticisms of Dr. Martzke’s report and findings may well be found to be completely correct, and my comments will not fetter the trial judge’s rulings if the report is tendered, but I do not think it is appropriate for the court to order a medical examination of a plaintiff by an expert who has previously taken such a strong stance in accepting the role as a reviewer of a previous examiner’s report, particularly in view of the specific provisions of Rule 11-2(1) of the Civil Rules.
In Jampolsky v. Shattler, the Plaintiff was injured in four separate motor vehicle accidents, and consequently initiated ICBC claims for the injuries sustained therein. The Plaintiff sought more than one million dollars in damages, alleging a traumatic brain injury. Prior to trial, ICBC’S lawyer made a formal offer to settle for $125,000.00. The Plaintiff received only $15,000.00 in damages. As the Plaintiff did not beat ICBC’s final formal settlement offer, ICBC’S lawyer sought costs against the Plaintiff from the point of the offer onwards. Normally, under such circumstances, such an order is granted, however in this case the court took into consideration the fact that one of the defense’s experts’ evidence crossed the line into advocacy, and did not award full costs.
 As earlier observed, but for the matter of the conduct of defendants’ counsel in the application for withdrawal of the admission and my findings concerning the evidence of Dr. Rees, I would have made an order under Rule 9-5(d) awarding the defendants costs in respect of the proceeding after the date of delivery of the offer to settle.
 The degree to which the evidence of Dr. Rees crossed the boundary from expert opinion into advocacy is a matter which rests at the feet of the defendants. He was their witness and the defendants assume responsibility for his conduct. The Rules require experts to certify that they will prepare their reports and provide testimony in accordance with their duty to assist the court and not assume the role of advocate: Jayetileke, supra.
 In LeClair v. Mibrella Inc., 2011 BCSC 533, Voith J. reduced the amount of costs payable to a successful defendant by 50% to make clear to the defendant that its conduct, in certain respects, was improper. The rebuke in costs was to signal the court’s expectation that parties will expect in a manner that is consistent with the Rules of Court.
 Here, similar to LeClair, I find that the conduct of the defendants, both through the actions of their counsel, Mr. Robinson, and in an expert called on their behalf, Dr. Rees, was sufficiently outside the boundaries of expected behaviour to warrant rebuke via a denial of costs to which the defendants would otherwise be entitled.
In Turpin v. Manufacturers Life Insurance Company, the Plaintiff argued that the medical report of the Defendant was advocating. The Court ruled the report to be inadmissible, a main reason being the use of bold font to highlight certain portions of the report.
 Finally, the plaintiffs object that the report is advocacy on behalf of the defendants.
 This objection is based, in part, upon the author’s use of bold font and italicized portions of the report.
He uses bold font to highlight words and phrases which benefit the plaintiff’s claim and support his diagnosis. This is apparent in his review of Ms. Warkentin’s history and medical reports. That which is contrary to the plaintiff’s claim or does not support his diagnosis is either omitted or presented innon-bolded font. This emphasis in support of the plaintiff’s claim and the exclusion of contrary matters is advocacy.
I adopt those comments as applicable in this case.
 This use of emphasis is not a practise to be encouraged. In this case, it may have been introduced by counsel’s letter of instructions, which suggested that the author may “indicate the relative degree of importance of any particular fact or assumption”.
In Drodge v Kozak, the Court accorded little weight to the opinion of a psychiatrist retained by ICBC.
 Dr. Solomons is a qualified psychiatrist who at the request of ICBC examined Mr. Drodge on July 9, 2009, and prepared a report dated August 2, 2009. At trial I ordered that certain contents of his report be expurgated, on the basis that the statements were not properly admissible opinion evidence.
 Dr. Solomons opined that Mr. Drodge did not sustain any functional brain injury as a result of the accident; nor did he develop any psychiatric condition or disorder as a result of the accident. It is Dr. Solomans’ view that the pre-conditions for the diagnosis of post-traumatic stress disorder were not met in this case. Rather, in his opinion Mr. Drodge presented with non-specific stress symptoms that potentially related to a number of causes, including physical pain, unemployment, financial constraints, and boredom. Other than some stress associated with his financial difficulties, he opined that Mr. Drodge’s present psychological status is “essentially normal”. Insofar as a prognosis, Dr. Solomans opined that there are no cognitive or psychiatric concerns, and that Mr. Drodge has no psychiatric or neuro-cognitive impediments for any vocational activities.
 In cross-examination Dr. Solomans admitted that a person could suffer from cognitive symptoms as a consequence of severe headaches. He agreed that headaches of this nature could affect someone’s mood and their ability to work, and that the headaches could therefore be disabling.
 Although Dr. Solomons maintained that Mr. Drodge did not exhibit any cognitive difficulties during his interview, the evidence supports a finding to the contrary. In cross-examination he acknowledged that his notes from the interview indicate as follows:
Not had cognitive tests. Then he says did. Query name. Not remember when. About 18 months to two years ago. Not remember the feedback about the test results.
Not recall anything about it at all, not even why he was treated.
Moreover, Mr. Drodge had mistakenly told him he had sustained his back injury in 1986; his back injury occurred in 1996.
 In my view, Dr. Solomons was not an impartial expert providing a balanced discussion on Mr. Drodge’s condition. Overall, I found his evidence lacking the sufficient degree of objectivity to be of any real assistance. In the result I have accorded his opinion little weight.
In Marchand v Pederson, the Court rejected the expert opinion of a physiatrist hired by ICBC.
 I find Dr. Nowak’s evidence to be problematic. He initially refuses to answer a question based on assumptions. It is clear that he is wrong in his reading of the intake report of Dr. Kinakin where he assumed that the pain was remaining constant. He is not accurate in the date of the last chiropractic treatment. I am of the view that Dr. Nowak is more of an advocate than an expert and I give very little weight to his evidence. I prefer the evidence of Dr. Apel when it comes to the diagnosis of fibromyalgia and the other conclusions reached by Dr. Apel. I am satisfied that the plaintiff may have improved somewhat from her last visit with Dr. Apel but I am satisfied that she continues to suffer a long term disability in respect to the fibromyalgia in the lower and upper back. I accept Ms. Phillips’ functional capacity evaluation and the limitations that the plaintiff has in respect to job opportunities because of her physical restrictions. I am also satisfied that the report of Dr. Wallace is fair and balanced and should be given a great deal of weight. I accept the plaintiff’s evidence that she stopped seeing her chiropractor, Dr. Kinakin, because she no longer had pain, but the chiropractor asked her to continue to see him because he was of the view that she had subluxation, which is poor posture so he was giving her treatment for that. She confirmed that she did not have any pain when she stopped seeing Dr. Kinakin. I accept her evidence….
In Jampolsky v Shattler, the Court yet again rejected the expert evidence of an ICBC retained specialist, this time a neurologist.
 Dr. Rees was also reluctant to acknowledge that brain trauma could occur without contact between the head and some other source. Although he acknowledged that an acceleration/deceleration injury could result in brain trauma, he confined such instances to situations where there as a concussive blast, such as that which was experienced by troops in Afghanistan when an I.E.D. exploded. He was resistant to the notion that an acceleration/deceleration injury of the type commonly seen in motor vehicles accidents could cause an MTBI
 Dr. Rees accepted, without question, the veracity of the plaintiff when it came to maters related by the plaintiff which tended to negate or be neutral as to the existence of a brain injury, but questioned, without proper foundation, the plaintiff’s truthfulness if his answer to a particular question came into conflict with Dr. Rees’ rigidly held views as to the length of time the sequalae from MTBI could persist and the extent to which an MTBI could interfere with what he called core skills. He referred to the plaintiff’s response to queries regarding whether he had undergone any sleep studies for his reported apnea as “disingenuous.”…
 Dr. Rees suggests that the absence of clinical observations at the scene by someone medically trained speaks against such a finding. With respect, I cannot agree that I am precluded from finding that the plaintiff suffered a concussive injury just because there were no medical personnel at the scene or at Surrey Memorial Hospital who diagnosed the plaintiff with such injuries.
 I place little or no reliance on the opinion of Dr. Rees. He assumed, for much of his testimony, the role of advocate as opposed to that of a disinterested and detached expert.
EXCLUDING DAMAGING EXPERT EVIDENCE
In Beazley v Suzuki Motor Corporation, the Court discussed the concepts of bias and lack of necessity, which are two forms of objection that can be made by counsel in an effort to keep damaging expert evidence out of a trial.
 Canadian courts appear to have taken different positions on the issue of whether an expert witness’ bias or perceived bias will disqualify him or her from giving evidence at trial. Some courts have held that for expert evidence to be admissible, the expert must be seen to be absolutely neutral and objective. Other courts have concluded that a lack of objectivity, neutrality and independence are matters that only impact the weight to be afforded that expert. Romilly J. in United City Properties Ltd. v. Tong, 2010 BCSC 111 at paras. 35-68, has exhaustively reviewed the jurisprudence.
 The cases are not easily reconciled. Where there is a personal relationship between the proposed expert and the party, where the expert has been personally involved in the subject matter of the litigation or where the expert has a personal interest in the outcome, the expert has not been allowed to testify. Examples of such cases are Fellowes, McNeil v. Kansa General International Insurance Co. (1998), 40 O.R. (3d) 456 (Gen. Div.); Royal Trust Corporation of Canada v. Fisherman (2000), 49 O.R. (3d) 187 (Sup. Ct. J.); Bank of Montreal v. Citak,  O.J. No. 1096 (Sup. Ct. J.); and Kirby Lowbed Services Ltd. v. Bank of Nova Scotia, 2003 BCSC 617. In cases where the relationship between the expert and the party is more institutional in nature, the evidence has been admitted subject to weight. Examples of such cases are R. v. Klassen, 2003 MBQB 253 and R. v. Inco Ltd.(2006), 80 O.R. (3d) 594 (Sup. Ct. J.).
 Expert opinion evidence is admissible only where a judge or jury are unable, due to the technical nature of the facts, to draw appropriate inferences. The defendants seek to call Ms. Padmanapan’s statistical evidence in order to establish a causal connection between a failure to wear a seatbelt in the course of a rollover accident and increased injuries. In certain circumstances statistical evidence can be helpful in determining causation: Laferrière v. Lawson,  1 S. C.R. 541.
 It has been long recognized in British Columbia that a party who fails to use an available seatbelt and sustains injuries more severe than if the seatbelt had been worn will be found to be contributory negligent: Yuan et al. v. Farstad (1967), 66 D.L.R. (2d) 295 (B.C.S.C.); Gagnon v. Beaulieu,  1 W.W.R. 702 (B.C.S.C.).
 While there appears to have been statistical evidence led in Yuan and in Gagnon, subsequent cases have held that such evidence is not necessary. In Lakhani (Guardian ad litem of) v. Samson,  B.C.J. No. 397 (S.C.) McEachern C.J.S.C. (as he then was) noted at para. 3:
I reject the suggestion that engineering evidence is required in these cases. The court is not required to leave its common sense in the hall outside the courtroom, and the evidence is clear that upon impact in both cases the Plaintiff’s upper body was flung or thrown forward striking the dashboard or the steering wheel. And common sense tells me that the restraint of a shoulder harness would have prevented that, and therefore some of the injury from having occurred.
 To succeed on the seatbelt defence, the onus will be on the defendants to establish upon a balance of probabilities that the use of a functioning seatbelt would have avoided, or minimized Ms. Spehar’s injuries: Harrison v. Brown,  1 W.W.R. 212 (B.C.S.C.); Terracciano (Guardian ad litem of) v. Etheridge (1997), 33 B.C.L.R. (3d) 328 (S.C.).
 The statistical evidence to be led from Ms. Padmanapan is, in my opinion, not necessary and will not assist me as trier of fact in determining the issue of contributory negligence. If the evidence is not necessary, it does not meet the test of admissibility.
 The exclusion of the seatbelt portion of Ms. Padmanapan’s report is premised upon my present understanding as to the basis upon which admission of that report is sought. If the basis for admission of the report changes, perhaps because of evidence the plaintiffs lead at trial, or otherwise, the defendants are at liberty when Ms. Padmanapan testifies to apply for reconsideration of this ruling.
EXPERT EVIDENCE versus FACTUAL EVIDENCE
In Anderson v. Dwyer, the Court discussed the difference between expert opinion and fact.
 In determining the admissibility of Dr. Wooden’s evidence, it is crucial to bear in mind the distinction between expert opinion and factual evidence that is given by potential expert witnesses. As the learned author of Phippson on Evidence (16th ed.) helpfully observes at para. 33-10, p. 972:
There is an important if elusive distinction to be made in the categorization of expert evidence. It is generally accepted that there is a difference between evidence of fact and evidence of opinion notwithstanding that it may be difficult to identify the line which divides the two. It is also well understood that in practice a witness of fact may not be able entirely to disentangle his perceptions from the inferences he has drawn from them. Although the courts often talk of “expert evidence” as if it were a single category representing in every case an exception to the rule against the reception of opinion evidence, it is suggested that a similar distinction exists in the evidence of experts and it is one which has considerable relevance both to the procedural aspects and to the assessment of the weight of expert evidence. Expert witnesses have the advantage of a particular skill or training. This not only enables them to form opinions and to draw inferences from observed facts but also to identify facts which may be obscure or invisible to the law witness. The latter might simply be described as scientific evidence; the former as expert evidence of opinion. A microbiologist who looks through a microscope and identifies a microbe is perceiving a fact, no less than the bank clerk who sees an armed robbery committed. The only difference is that the former can use a particular instrument and can ascribe objective significance to the data he perceives. The question of subjective assessment and interpretation which is the essence of opinion evidence hardly enters into the matter at all. An example of the dichotomy can be seen in the case of a conflict between experts on handwriting as to the authenticity of a document. By virtue of their training, such experts would be able to distinguish parts of letters or techniques of word formation which a layman would be unable to observe. This is the scientific part of their work. The question of which features are significant and the inferences to be drawn from them are questions of judgment, assessment, opinion. This distinction which has now been accorded a measure of judicial recognition is thought to be of some practical utility in considering the weight of evidence given by experts both taken in isolation and when assessing the merits of two competing theories.
 This distinction is a very meaningful one in this case. Any evidence by Dr. Wooden seeking to offer an opinion about the plaintiff’s injuries, such as the inferences to be drawn from the observations in the x-rays or with respect to the cause or mechanism of the injury, would be prohibited because of the plaintiff’s failure to comply with Rule 40A. However, the witness’s factual narrative of the actions he took and the observations he made, including describing without interpretation, the anatomical features he observed in the x-rays does not amount to offering an opinion and does not offend the Rule. The fact that he brings special training or experience to bear in having taken those actions and made those observations is not determinative. It is whether he draws inferences or offers opinion beyond what the actual evidence itself is capable of revealing.
 In this regard, I consider this kind of factual evidence to be analogous to those matters described by Madam Justice Garson as being “more in the nature of observations” as opposed to inferences having complex interpretive or diagnostic components when she described how their inclusion in records sought to be admitted as business records did not offend Rule 40A in Egli v. Egli, 2003 BCSC 1716 at para. 25 which was relied on by the defendant in submissions.
WHEN AN EXPERT PASSES AWAY BEFORE TRIAL
In Andrews v. Mainster, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages for pain and suffering, as well as other heads of damages. The Plaintiff was examined by a neuropsychologist for cognitive difficulties, and an expert report was produced. Approximately one year before the trial was set to commence, the neuropsychologist passed away. Counsel for the Plaintiff sought to enter the report into evidence, making the submission that the report meets the requirements of necessity and reliability, and consequently should be admitted under the principled approach to the hearsay rule, even though the defence would not be able to cross-examine the neuropsychologist. Counsel for the Plaintiff sought to adduce the expert report to prove the truth of the opinions that it contained.
The Court would eventually admit the factual portions of the report into evidence, however not the portions of the report dealing with opinion evidence.
 I return now to Dr. Kay’s report. Dr. Kay’s report provides the only evidence of a comprehensive neuropsychological evaluation of the plaintiff’s cognitive functioning one year post accident. The necessity requirement is met with respect to those portions of Dr. Kay’s report that deal with his testing and evaluation of the plaintiff’s level of cognitive functioning. I also find that those parts of Dr. Kay’s report that record the history he took from Ms. Andrews, discuss the tests he administered and set out his opinions on the results of his testing of the plaintiff’s cognitive functioning meet the threshold of reliability required for their admission into evidence. Dr. Kay was a neuropsychologist trained and experienced in the use of the standardized tests he administered to the plaintiff. Those tests provide a largely objective measure of the plaintiff’s cognitive functioning. These factors, combined with Dr. Kay’s certification of the duties he owed to the court as an expert provide sufficient circumstantial guarantees of the trustworthiness of this evidence to satisfy threshold reliability.
 Different considerations apply respecting Dr. Kay’s opinion or diagnosis of post-traumatic stress disorder, his prognosis, and his opinion on the motor vehicle accident as a cause of the plaintiff’s emotional and psychological disorders. Those opinions have a significant subjective component. They are not predicated upon the objective results of his testing of the plaintiff’s cognitive capacity. The nature, extent and sources of the plaintiff’s psychological difficulties both before and after the motor vehicle accident are all in issue in this litigation. There is also a live issue about whether the plaintiff fully disclosed relevant information concerning her psychological condition and the various stressors that affected her from time to time to the counsellors, psychologists and psychiatrists who have treated or examined her.
 In light of the subjective nature of the evidence concerning the causes and nature of the plaintiff’s emotional and psychological disorders, and the gaps in the documentary record that I have discussed briefly, I am not satisfied that Dr. Kay’s professional training as a psychologist and the certifications contained in his report provide an adequate guarantee of the trustworthiness of his opinions on these matters to meet the threshold of reliability for their admission into evidence. In the circumstances of this case, there is no adequate substitute for cross-examination of the expert.
 Further, the test of necessity is not met for Dr. Kay’s diagnosis of and prognosis for the plaintiff’s emotional and psychological disorders. Relevant direct evidence is available from another source. The plaintiff has a comprehensive opinion from Dr. O’Shaughnessy on the nature and causes of the plaintiff’s disorders, their relationship to the motor vehicle accident and their treatment.
 Accordingly, I conclude that those portions of Dr. Kay’s report beginning at page 20 under the heading “Psychological Explanations” and continuing with the prognosis, opinion and recommendations at pages 21 through 23 do not satisfy the tests of necessity and reliability and are therefore inadmissible. The balance of Dr. Kay’s report, with those redactions, will be admitted into evidence.