December 18, 2017 by Canadian Underwriter
The Supreme Court of British Columbia has tossed out the report of a forensic engineer, which supported the public insurer’s position in an unidentified car case, saying the report relied too heavily on expert opinion and not enough on “science.”
In Young v. Insurance Corp. of British Columbia, issued on Dec. 11, the court dealt solely with the admissibility of the report as evidence. It did not rule on the central question of whether an unidentified car was involved in a collision.
In Young, the province’s public auto insurer, ICBC, has denied the existence of an unidentified car in a collision involving the claimant, Jennifer Young. But the court concluded that the forensic engineer’s report in support of ICBC’s position was inadmissible because it lacked the required scientific rigour.
In his ruling, B.C. Supreme Court Justice Christopher Grauer observed that the problems with the report were not the fault of the forensic engineer. Rather, they could be blamed in part on the fact that the report was prepared 5-1/2 years after Young made her claim.
“An expert can only deal with the data and information that is available,” Grauer wrote. “Here, as noted above, there was no data and little information available to [forensic engineer Gerald Sdoutz].
“As a result, it was impossible to undertake the sort of forensic analysis one would expect in support an opinion of this nature. I am therefore asked to accept something of a much lower level of reliability, based upon an inadequate scientific foundation. That, in my view, renders it unsafe to admit the report.”
The claim arose out of an incident that happened on Jan. 22, 2012. Julia Young says she was driving north on Cariboo Road in Burnaby, B.C., heading into a curve to her left, when an oncoming vehicle crossed the centreline and sideswiped her, pushing her into the concrete barrier to her right, on the northbound shoulder.
The collision with the barrier caused significant damage to the left side of her vehicle, and damage to the right rear. According to Young, the other vehicle, which she described as silver or light in colour and about the size of her own Ford Focus, then left the scene of the accident. Young sued the public insurer, ICBC, in place of the unidentified owner and driver.
ICBC sent a letter of instruction to Sdoutz’s firm on Jan. 14, 2015. Sdoutz then prepared a report based on an analysis of what evidence was available — essentially, photographs and police evidence. (The court decision does not account for the time lapse between the incident and the initial letter of instruction to the engineer.)
“The damage to the Focus’ driver’s side, as seen in the provided photographs, is not consistent with having been caused solely due to contact with another vehicle,” Sdoutz concluded. “The gouging and punctures into the metal is [sic] not typically seen when there is a sideswipe type contact with another vehicle. Particularly another vehicle of similar size and construction as the Ford Focus.”
But counsel for Young challenged the report’s findings, asking the court: “Where is the science?”
The court’s decision summarizes the issues Young’s lawyer had with the report as follows: “It involved no scientific analysis, measurements or research, but consists primarily of argument and speculation. Mr. Sdoutz did not visit the scene of the accident but relies on Google Maps. He did not measure anything, did not see the car, and cites no accident information, statistics or testing. The hallmarks of scientific analysis, [Young’s counsel] asserts, are missing.”
The court agreed and ruled the expert report was inadmissible.