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The Three Expert Rule: When Proving your Claim Requires More

Case citation: Norris v Vomacka, 2024 ABKB 312

In Norris v Vomacka, 2024 ABKB 312, the Plaintiff was involved in a motor vehicle accident and alleged suffered from chronic pain, physical symptoms, balance issues, and psychological impairment. Further, the Plaintiff alleged he suffered from functional impairments and a loss of ability to work at his pre-accident capacity. The Statement of Claim seeks general damages of $150,000, plus undefined income losses and special damages.

Section 558.1 limits the number of expert reports that can be tendered in support of a damages claim in a motor vehicle accident. Where the value of the claim is more than $100,000, the plaintiff is limited to three expert reports on the issue of injury damages. Norris is the first judicial treatment of this section, which came into force on January 1, 2021, and was included with the Enhancing Driver Affordability and Care Amendment Act. The purpose of the amendment was to reduce the complexity and cost of motor vehicle personal injury trials by limiting duplicate and unnecessary expert evidence.

The Plaintiff obtained three expert reports; a Physiatrist IME with Dr. Sangha, a Functional Capacity Evaluation from Katie Bassett, and an Economic Loss report from Dr. Hyatt. The IME report from Dr. Sangha concluded the Plaintiff experienced lingering post-concussion symptoms and had ongoing disequilibrium. Dr. Sangha could not comment on these injuries and recommended the Plaintiff attend examinations with a neuropsychologist for the concussion symptoms and an ENT specialist for the disequilibrium. The Plaintiff argued that limiting the expert reports to three would prejudice his ability to prove damages at trial, as Dr. Sangha was not a suitable expert to comment on the additional injuries.

Applications Judge Mattis considered the factors in section 558.1(6), which require that the additional expert evidence must relate to matters not already addressed by another expert, and that excluding the additional evidence would disproportionately prejudice the Plaintiff. AJ Mattis found that the evidence sought through the neuropsychological and ENT examinations covered distinct issues not already addressed by Dr. Sangha's IME, the FCE report, or the Economic Loss report.

Regarding prejudice, the Defendant argued that the Plaintiff had provided no evidence of the prejudice he might suffer, and that it was the Plaintiff’s burden to show such prejudice. Without any evidence, the application for additional expert reports must fail. However, AJ Mattis disagreed. She held that the prejudice would only become apparent at trial when the Plaintiff needed to prove his claim. AJ Mattis determined that the anticipated prejudice outweighed any increased costs or complexities caused by the additional expert evidence. Overall, the Plaintiff was entirely successful in his application under section 558.1 for additional expert evidence.


In Norris, AJ Mattis faced clear recommendations from Dr. Sangha indicating additional evidence was necessary to prove further injuries. When deciding whether to oppose an application under section 558.1, it is important to carefully review the proposed experts. This is to ensure there is no overlap with existing expert evidence that could prevent the additional report from being presented at trial.


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