Selles v. Ling

2000 BCSC 51 Citation: Selles v. Ling Date: 20000107 2000 BCSC 51 Docket : B954951 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: ROBERT MICHAEL ANDREW SELLES JR., AN INFANT BY HIS GUARDIAN AD LITEM ROBERT KENNETH SELLES AND THE SAID ROBERT KENNETH SELLES PLAINTIFFS AND: BOBBY LING AND BETTY CHULAN CHENG DEFENDANTS SUPPLEMENTARY REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE DROST Counsel for Plaintiffs: S.G. Label Counsel for Defendants: A.D.C. Ross Date and Place of Hearing: Vancouver, B.C. July 14, 1999 INTRODUCTION [1] While crossing No. 1 Road in Richmond B.C., outside of a marked cross walk, the infant plaintiff, Robert Michael Andrew Selles Jr., was struck down by a motor vehicle owned by the defendant Bobby Ling and driven by the defendant Betty Chulan Cheng. [2] As a result of the accident the infant plaintiff suffered bruises, contusions and an undisplaced linear fracture of his skull. The most serious issue, so far as damages is concerned, was the claim that as a consequence of the skull fracture he had suffered a mild traumatic brain injury. It was alleged that, as a result of that injury, the infant plaintiff suffered neuropsychological impairment, impairment of his cognitive development and abilities, and impaired intellectual capacity which injuries had and would continue to have a detrimental effect on his enjoyment of life, and would also result in loss of opportunity and a loss of his capacity to earn income in the future. [3] Following a trial that commenced on June 1, 1998 and continued for a further eight days, I found that liability was divided between the infant plaintiff and the defendants in the proportions of 25% and 75%, respectively. I then awarded the infant plaintiff non-pecuniary damages in the amount of $40,000.00 together with special damages of $669.87. I found that the evidence failed to establish that he had suffered a MTB injury, and I dismissed his claim for damages for loss of future earning capacity. [4] Because success was divided, I invited the parties to address the issue of costs if they were unable to reach agreement. THE ISSUES [5] The plaintiffs acknowledge that, as a consequence of the finding of divided liability, they are entitled to recover only 75% of their costs with respect to the liability issues. However, they claim entitlement to 100% of their costs with respect to the damages issues. It seems that the defendants made an offer of $15,000.00 in full settlement of their claims. The plaintiffs rejected that offer and proceeded to trial where they recovered (following the division of liability) $30,000.00 in non-pecuniary damages plus their special damages and court order interest. Therefore, they say, they were successful at trial and it would be unjust to deprive them of their costs only because they did not succeed on the MTB injury claim. They say that, even though the claim did not succeed, there was evidence to support their assertion that the infant plaintiff had suffered a MTB injury. [6] The defendants are in general agreement that the plaintiffs are entitled to recover 75% of their costs with respect to the liability issue, but they submit that the plaintiffs should not be allowed the disbursements they incurred with respect to an accident reconstruction expert called by them on the issue of liability because I found his evidence to be of very limited assistance. [7] The defendants principal argument is that because the unsuccessful MTB injury claim was the major issue so far as damages were concerned, in terms of both time spent and monetary value, the plaintiffs should recover no costs with respect to the portion of the trial taken up with that issue. They go further and submit that in the circumstances they should recover the costs of preparation and attendance for that portion of the trial, together with the expenses they incurred in presenting expert evidence to rebut that of the plaintiffs' witnesses. [8] There is one further issue to be resolved. The trial of this action was originally scheduled to commence at an earlier date. As I understand it, at the eleventh hour counsel for the plaintiffs learned that an expert witness whose evidence they intended to rely upon had prepared a false report. The plaintiffs sought and, over the objections of the defendants, were granted an adjournment of the trial. The question of costs thrown away was left to be dealt with by the trial judge. The defendants seek those costs. DISCUSSION [9] Dealing first with the question of the trial costs, it is, of course, the general rule that the costs of and incidental to a proceeding will follow the event. However, Rule 57(15) of the Rules of Court allows the court to award costs that relate to some particular issue or part of the proceeding, or to award costs except so far as they relate to some particular issue or part of the proceeding. [10] I agree with the defendants' submission that the MTB injury claim and the alleged loss of earning capacity were distinct issues, and that a reasonably accurate calculation of the amount of court time relating to those issues can be made. With the benefit of counsels' estimates and a review of my bench notes, I have concluded that approximately 4 of the 9 days of trial were devoted to the liability issues. Of the remaining 5 days, by far the largest portion related to the MTB injury claim and the alleged loss of future earning capacity. [11] The defendants submit, this court should exercise the discretion granted by Rule 57(15) by denying the plaintiffs the costs of that portion of trial and the preparation relating to those issues, as well as the disbursements the plaintiffs incurred in connection with Mr. Carson and Dr. Krywaniuk, two expert witnesses whose evidence they led with respect to those issues. They say that Mr. Carson, an economist, extended the length of the trial by giving evidence concerning "clearly unhelpful statistics" taken from a certain study, and that the opinion of Dr. Krywaniuk, a clinical psychologist, "proved to be insufficient to meet the test of proving the [infant] plaintiff suffered traumatic brain injury" which, they say, the plaintiffs ought to have realized before the trial began. [12] The defendants rely primarily on the decisions of the British Columbia Court of Appeal in B.C. (Govt.) v. Worthington (Can.) Inc. (1988), 29 B.C.L.R. 145, and Bailey v.Victory (1995), 4 B.C.L.R. (3d) 388. In Worthington, a lengthy commercial trial, the plaintiff's claim was dismissed and a counterclaim was allowed. Nonetheless, the trial judge, relying on Rule 57(8)(now Rule 57(15)), awarded costs to the plaintiff with respect to two issues raised by the defendant. [13] On appeal, the trial judge's ruling was upheld. Esson J.A. (Carrothers and McLachlin J.J.A. concurring) observed that the trial occupied 41 days, 14 of which were wholly taken up with the two issues raised by the defendants and on which they failed. He noted that R. 57(8) is concerned with success on particular issues or parts of the proceeding, not with success in terms of the relief granted. He held that in order to justify an order pursuant to what is now R. 57(15) depriving a generally successful party of costs or, requiring that party to pay some costs to the party who generally failed, it is not necessary to establish that the issues raised by the otherwise successful party were "spurious" or "unjustifiable" or "improper"; it is enough that "there was mixed success on issues or parts of the proceeding." [14] The purpose of the Rule, he held, "is to give trial judges a discretionary power to effect a just result between parties in cases which have been prolonged by issues such as those raised here by the defendants." It seemed unlikely to him that, in respect of either of those issues, the defendants could have thought they had much chance of success. [15] Mr. Justice Esson went on to note that the "most persuasive argument" put forward by the defendants was that the order made by the trial judge raised the spectre of trial judges being invited to dissect and analyze every issue and subissue with a view to apportioning costs. While acknowledging that such a result would be most undesirable, he felt it unlikely, as applications of that nature should be brought only in "relatively rare cases." [16] Finally, I find it significant that in Worthington, Esson J.A. observed that: This case is of a kind which I consider particularly appropriate for the application of R. 57(8). It is major commercial litigation typical of many cases which, in recent years, have come to occupy inordinate amounts of court time and to inflict inordinate expense on litigants. I doubt if anyone familiar with such cases will deny that the costs in time and money has in some cases been greatly increased because defendants have not always resisted the temptation to place in the path of a plaintiff every hurdle of which the ingenuity of the legal and business mind can conceive.... [17] In Bailey v. Victory the plaintiff sued for damages for personal injuries suffered in a motor vehicle accident. Liability was admitted, and the main issue with respect to damages was the plaintiff's claim for future loss based upon his assertion that he could no longer work as an auto mechanic. The assessment of damages took 6 days, including 1 day of argument. [18] The trial judge awarded non-pecuniary damages and damages for past and future income loss in amounts far less than the plaintiff had claimed but which, nevertheless, exceeded the defendant's payment into court. [19] The trial judge found that a video presented in evidence by the plaintiff in support of his claims for past and future loss of income was misleading and, concluded that the pursuit by the plaintiff of his "exaggerated claim" consumed much of the total trial time. The trial judge awarded each of the parties 50% of their costs, with a right of set-off. [20] The Court of Appeal set aside the trial judge's order as to costs, holding that a proper exercise of the discretion given by the Rule would be to deny the plaintiff his costs of 3 days of the trial and the disbursements associated with an expert report which was based largely on the plaintiff's assertion that he could not perform the tasks of an auto mechanic. Otherwise, the plaintiff was allowed the costs of the action. [21] On of the authorities relied upon by the plaintiffs is the decision of Shaw J. in Narayan v. Nelson ,1997, Vancouver Registry, Docket No. B950970 (B.C.S.C.). concerning the appropriate disposition of the costs of a civil jury trial held to assess damages in a personal injury action. The liability issue had been decided earlier, the defendant being found 60% at fault and the plaintiff 40% at fault. [22] After the liability issue had been decided but before the jury trial on damages was held, the defendant made an offer of $6,000.00 in full settlement of the plaintiff's claims. That offer was rejected and the jury assessed the plaintiff's damages at $99,605.00. Judgment was then given to the plaintiff for $59,763.00, being 60% of the assessed damages. [23] The plaintiff sought 100% of her costs of the trial on the assessment of damages. The defendant contended that her recovery should be limited to 60% of her costs. [24] After noting that s. 3 of the Negligence Act provides that: 3. Unless the court otherwise directs the liability for costs of the parties to every action shall be in the same proportion as their respective liability to make good the damage or loss. Shaw J. observed that: The case law cited by counsel indicates that the circumstances in which the court may direct costs that are not proportional to the degrees of liability of the parties are where it would be unjust to award costs in accordance with the proportions of liability. [25] Mr. Justice Shaw then held that, in the circumstances of that case, it would be unjust not to award the plaintiff her full costs because she was forced to go through with the jury trial if she was to recover more than the offered amount. She did so, and as Shaw J. put it, "by any measure she won." CONCLUSIONS [26] It cannot be said that the trial of this action was prolonged by a claim that obviously had little chance of success, as in Worthington. Nor can it be said that the claim was exaggerated, as in Bailey v. Victory. There was evidence to support the MTB injury claim, even though I found, on balance, that it fell short of establishing the claim. [27] Nevertheless, in my view, it would not be just to award the plaintiffs 100% of their costs with respect to the damages issues. While they may be said to have "won", in the sense that they went to trial and recovered approximately twice the amount offered by the defendants (even after liability was divided), that, in itself, does not justify an award of 100% of the costs relating to damages. The fact remains that they "lost" on their major claim. [28] I find this to be a case in which the application of s. 3 of the Negligence Act is entirely appropriate. I find the plaintiffs entitled to recover 75% of their costs on Scale 3 with respect to the damages issues as well as the liability issue. The defendants suffered no damage or loss, therefore, subject to what I shall say about costs thrown away, the plaintiffs are not liable to pay any portion of their costs: Flatley v. Denike (1997), 32 B.C.L.R. (3d) 97 (C.A.). [29] The plaintiffs' costs will include the expenses associated with the three expert witnesses whose evidence I did not accept. The opinion of the accident reconstruction specialist was based on certain assumed facts. I found that those facts had not been established by the evidence at trial. Accordingly, apart from certain measurements of distance and time/speed factors, his evidence was of little assistance. But that does not mean that the plaintiff should have to absorb his fee entirely. However, I do find that the video he prepared on the basis of his assumed facts was an unnecessary expense, and one which the plaintiffs ought not to recover. [30] I also see no reason to exclude the expenses associated with the witnesses Jackson and Krywaniuk. Their evidence was led in support of a claim which, though unsuccessful, was not without merit. [31] However, the plaintiffs are not entitled to recover any part of the expenses they incurred in relation to the false expert report which led to the adjournment of the original trial date. [32] Finally, as to the second aspect of this application, I find that the defendants are entitled to recover the costs thrown away as a consequence of that false report and the resulting adjournment, including any expense incurred by them in obtaining an expert report for the specific purpose of refuting the opinion or opinions expressed in that false report. The defendants shall also have the right to set off those costs against any amount owing to the plaintiffs. "I. L. Drost, K." The Honourable Mr. Justice I.L. Drost August 1, 2000 -- Corrigendum issued by Justice Drost advising that on page 8, paragraph 32 was inadvertently omitted from the Supplementary Reasons for Judgment. The paragraph is as follows: "[32] However, the plaintiffs are not entitled to recover any part of the expenses they incurred in relation to the false expert report which led to the adjournment of the original trial date."