Tang v. Chan

2002BCSC1651 Citation: Tang v. Chan, Chan and Slaughter Date: 20021129 2002 BCSC 1651 Docket: B975240 Registry: Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN:

KHAC TAO TANG

PLAINTIFF AND:

MAN YEE CHAN AND HON CHAU CHAN defendants Docket: M002651 Registry: Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN:

KHAC TAO TANG

PLAINTIFF AND:

JASON BRIAN SLAUGHTER defendant

REASONS FOR JUDGMENT

OF THE HONOURABLE mr. JUSTICE drost Counsel for the Plaintiff: S.T. Cope Counsel for the Defendants: D.A. Cave Counsel for the Insurance Corporation of British Columbia: M.W. Biggs Place and Date of Hearing: Vancouver, BC November 4, 2002 Introduction [1] The plaintiff was injured in two motor vehicle accidents, the first of which occurred on September 14, 1997, and the other on May 7, 1999. His damage claims against both defendants were consolidated for the purposes of trial before judge and jury. [2] At the end of a nine day trial, the jury made certain damage awards, but submissions concerning the amount of the judgment to be entered and costs were postponed to a later date. [3] This application was brought to determine the judgment amount, the appropriate scale of costs to be recovered by the plaintiff, and whether, as the defendants claim, they are entitled to the costs of one day of trial and to be relieved of payment of the fee charged by one of the plaintiff's expert witnesses. Background [4] Liability was admitted in both cases, so at trial, the principal issues were: a) the plaintiff's claims for past and future wage losses; b) whether the trial of the actions was premature, in that the plaintiff had not yet undergone recommended surgical treatment; and c) the apportionment between the two defendants of liability for any damages awarded to the plaintiff. [5] The jury made the following awards: a) For non-pecuniary damages $28,000.00 b) For past loss of income 15,598.00 c) For loss of future earning capacity 82,430.00 d) For past special damages 3,967.93 e) For future special damages 4,000.00

TOTAL $133,995.93 and apportioned liability for the damages awarded between the defendants as follows: a) Non-pecuniary damages: Man Yee Chan and Hon Chau Chan............... 97% Jason Brian Slaughter........................ 3% b) Past income loss: Man Yee Chan and Hon Chau Chan............... 95% Jason Brian Slaughter........................ 5% c) Loss of future earning capacity: Man Yee Chan and Hon Chau Chan............... 95% Jason Brian Slaughter........................ 5% d) Past special damages: Man Yee Chan and Hon Chau Chan............... 75% Jason Brian Slaughter........................ 25% e) Future special damages: Man Yee Chan and Hon Chau Chan............... 95% Jason Brian Slaughter........................ 5% A. The Judgment Amount [6] In assessing the amount of the plaintiff's damages with respect to future special damages, the jury included in its award the sum of $2,000.00 for anticipated future physiotherapy treatments. [7] During the course of the hearing I allowed an application brought by the Insurance Corporation of British Columbia pursuant to s. 25(5) of the Insurance (Motor Vehicle) Act that the sum awarded by the jury, as part of future special damages, for future physiotherapy treatments be deleted from the judgment amount. I stated my conclusion that under s. 88 of the Revised Regulation (1984) issued under the Insurance (Motor Vehicle) Act, the

Insurance Corporation of British Columbia has an ongoing obligation to pay, as Part 7 benefits, all reasonable expenses incurred by the plaintiff for services of that nature. [8] Accordingly, I directed that the sum of $2,000.00 awarded by the jury for such services be excluded from the judgment amount, leaving a balance of $2,000.00 for future special damages, that being the amount awarded by the jury with respect to anticipated medications and travel expenses. B. Costs [9] As noted above, the plaintiff seeks costs under Scale 4. The defendants say that his costs should be under Scale 3. [10] Scale 3 is "for matters of ordinary difficulty or importance", and that Scale 4 is "for matters of more than ordinary difficulty or importance": s. 2(2) of Appendix B of the Rules of Court. Factors that the court may take into account in fixing the appropriate scale under which costs will be taxed, as set out in s. 2(3) of Appendix B. The plaintiff acknowledged that the case is not of more than ordinary importance, so the only factor to be assessed is the level of difficulty. [11] In that regard, the factors the Court must consider include trial length, complexity of issues, extent of pre-trial applications, whether the action was hard fought, length of examinations for discovery, complexity and number of experts reports, and the effort required to gather the facts: Bradshaw Construction

Ltd. v. Bank of Nova Scotia (1991), 54 B.C.L.R. (2d) 309 (S.C.), aff'd (1992), 73 B.C.L.R. (2d) 212 (C.A.); Boogaars v. Anderson, [1991] B.C.J. No. 983, (23 April, 1991), Vancouver B884571 (S.C.); Ter Neuzen v. Korn (1991), 64 B.C.L.R. (2d) 125 (S.C.). [12] In my view, none of those factors were present in this case. There is nothing unusual about having more than one personal injury claim heard at the same time when an issue has arisen as to the extent of each defendant's responsibility for the injuries suffered by the plaintiff. There was nothing particularly complex about the issues or the expert opinions, nor were the number of pre-trial applications and examinations for discovery excessive. Perhaps, as the plaintiff asserts, the trial might have occupied fewer days had it been heard by judge alone, but it is the defendants' prerogative to have the action tried by judge and jury, and that is no reason to increase the scale of costs. [13] In my view, this was a case of ordinary difficulty. The issues required the plaintiff to adduce expert evidence and challenge that presented by the defendants. However, as has been said, ordinary cases often include expert opinion evidence, and not infrequently there will be conflicts between the opinions expressed by opposing experts. [14] The plaintiff is entitled to his costs under Scale 3. C. The Defendants' Claim for the Costs of One

Day of Trial [15] During a conference with counsel held prior to the selection of a jury on the opening day of trial I learned that the plaintiff would seek to include in a book of medical reports and clinical records, a medico-legal report prepared by Dr. Peter Fry, a recognized specialist in vascular surgery. Mr. Cave informed me that the defendants objected to the admissibility of that report on the grounds that the opinion expressed by Dr. Fry as to what he described as the neurological complaints of the plaintiff were outside the scope of his expertise. [16] Mr. Cave had initially expressed an objection to Dr. Fry's report in a letter to Mr. Cope dated September 19, 2001, I which he said, in part: I have reviewed the report of Peter Frye (sic). Frye indicates that the neurological complaints are "outside of my area of expertise". If you are prepared to delete the reference to neurological symptoms in paragraph 52 of his report, (about which he knows nothing), I will waive cross-examination of him. [17] On October 2, 2001, Mr. Cope responded by letter in which he stated, in part: We enclose Dr. Fry's letter dated September 11, 2001 [received on September 28, 2001]. This letter answers your correspondence of September 4, 2001. Needless to say, we are not prepared to delete paragraph 52 of Dr. Fry's report as suggested by your letter of September 19, 2001. [18] On October 23,

2001, Mr. Cave wrote again to Mr. Cope, this time saying: Further to our telephone conference of this morning, we enclose a copy of Dr. Fry's report of August 18, 2001, with the paragraphs in dispute indicated thereon. [19] Later, on the opening day of trial and after the selection of a jury, counsel addressed in more detail the defendants' objection to the admissibility of that report. The following morning, prior to Mr. Cope's opening address to the jury, I gave fairly extensive reasons with respect to each of the three grounds of objection that had then been taken by the defendants, namely: (a) that the report contained opinions expressed in connection with matters that fall outside Dr. Fry's area or areas of expertise; (b) that it contained unnecessary summaries or paraphrases of other reports and clinical records, some of which would not be in evidence at the trial; and (c) that it contained argument dressed up in the guise of opinion. [20] For reasons that I need nor repeat, I found the opinion inadmissible on, in part, all three of those grounds. I found that Dr. Fry's review of the clinical data was entirely unnecessary, formed no part of the foundation for his opinion, and could easily distort the fact-finding process. I found some of the conclusions he expressed were inappropriate and inadmissible as being findings of fact, or, at the very least, suggestions falling

outside the scope of an expert's report. Other aspects of his report I found to be attempts at advocacy, rather than the expression of an opinion. [21] However, I also found that, despite its numerous defects, Dr. Fry's report was not entirely without merit. In particular, I found his opinion concerning the presence of neurological symptoms to be admissible. [22] There then followed lengthy submissions concerning the editing of Dr. Fry's report during which I took the position that it is not the court's function to rewrite his report. Mr. Cave expressed concern that, if an edited version of the report was presented and found admissible, he might be forced to seek an adjournment in order to obtain a neurological opinion from his own expert. [23] Later that morning, after further consideration, Mr. Cope agreed to remove all of Dr. Fry's material from the proposed book of medical exhibits and stated that, on the basis that the material constituted sufficient notice under Rule 40A(3) of the Rules of Court, he would call Dr. Fry as a witness for the plaintiff. I accepted that solution and a few days later Dr. Fry appeared and gave his evidence. [24] Another matter that occupied some considerable time, in the absence of the jury, was the plaintiff's submission that during the course of my final instructions to the jury I should give them a direction as to the appropriate range of

non-pecuniary damages that might be awarded to the plaintiff. [25] At that time, there was a division of opinion in this court as to whether such a direction was proper. I held that it was not, a position subsequently approved by the Court of Appeal in another case. [26] The plaintiff now seeks to recover the costs of one day of trial, that being roughly the amount of time taken up in consideration of these two matters, the admissibility of Dr. Fry's report and the question of charging the jury as to an appropriate range of non-pecuniary damages. [27] I have concluded that the defendants are entitled to the costs of the application concerning the admissibility of Dr. Fry's report, but not those relating to the submissions concerning a direction to the jury as to a range of damages. [28] As to the latter, because there were then conflicting decisions of this court, the plaintiff was entitled to make that submission and should not be penalized in costs for having done so. [29] However, the defendants, whose application to rule out Dr. Fry's report as it stood was successful, are in my view entitled to an award, pursuant to Rule 57(15), of one-half day's costs relating to that part of the proceeding, that amount to be offset against the costs otherwise payable to the plaintiff. D. Dr. Fry's Trial Appearance Costs [30] The defendants also seek an order relieving them of responsibility for the fee charged by Dr. Fry with respect to his appearance as a witness for the plaintiff. [31] While the defendants should not have to bear the burden of Dr. Fry's fee for preparing a report I found inadmissible, I see no reason to deny the plaintiff the right to recover Dr. Fry's proper witness fee. "I.L. Drost, J." The Honourable Mr. Justice I.L. Drost