In the LAT decision A.B. and Aviva (December 23, 2016) a claim for non-earner benefits, medical benefits and interest was considered. Vice-Chair J.R. Richards followed the well established test set out by the Court of Appeal in Heath v. Economical in considering, “complete inability to carry on a normal life”. When faced with surveillance which showed the claimant working delivering pizzas post accident, the claimant raised a novel argument which will henceforth be called the “pizza oven heat therapy” argument. He stated he was working unpaid as the heat from the pizza ovens alleviated his pain. The tribunal considered that the surveillance, together with the rest of the evidence, the claimant did not meet the test for NEB.
This decision is notable for several preliminary issues:
1. Oral Evidence by Experts. The claimant’s counsel asked for an adjournment (twice) to allow her two experts to testify in person. In her submissions she acknowledged the expert reports spoke for themselves, but argued that by disallowing viva voce evidence, the claimant would be denied effective and proportional representation. The request was denied (on both occasions) as it was common practice to rely on expert reports, especially where it was not argued that oral evidence was critical to understand difficult or controversial information. Vice-Chair Richards stated that fairness and efficiency required the hearing to proceed as scheduled.
2. Failure to Comply with Rules 10.2 and 10.3- Identification and Disclosure of Expert Witnesses. Although the insurer had properly identified its witnesses at the case conference, it had not complied with Rules 10.2 and 10.3 of the LAT Rules of Practice and Procedure, which requires, amongst other things, a signed statement from the expert to be delivered either 30 days (applicant) or 20 days (respondent) prior to the hearing. As such, the insurer was allowed to rely on the reports, but were not permitted to testify in person.
3. Surveillance. The tribunal found that the insurer failed to comply with Rule 20, by not disclosing surveillance at the case conference, and Rule 10 (which deals with expert evidence). However, the tribunal also considered this breach not so serious to warrant excluding relevant evidence. The probative value outweighed any prejudice. The surveillance was served prior to the hearing and the applicant did have an opportunity to respond, both before and at the hearing.
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