Dr. Knight

The appellant insurer sought to preserve the evidence of three experts regarding the cause of an infant's injuries before an action was commenced.

A previous application was dismissed because Rule 36.01 did not allow for preservation of evidence prior to the commencement of a proceeding.

Following an amendment to Rule 36.01 that expanded the definition of a party, the insurer brought a new motion.

The motion judge dismissed it on the basis of res judicata.

The Court of Appeal allowed the appeal, holding that the change in the law constituted special circumstances justifying an exception to res judicata.

The court ordered the examination of two experts who had examined the vehicle, but not the expert who only reviewed medical records.

The applicant was found severely injured in a driveway between two houses with no memory of the incident.

He claimed statutory accident benefits, alleging he was struck by a motor vehicle.

The insurer denied the claim, arguing the injuries resulted from an assault.

After hearing extensive medical expert testimony regarding the pattern and severity of the injuries, the arbitrator concluded on a balance of probabilities that the injuries were consistent with a pedestrian-automobile collision and ruled that the applicant was involved in an 'accident' under the Schedule.