IN THE SUPREME COURT OF BRITISH COLUMBIA
Langille v. Nguyen,
2013 BCSC 2089
Van Cuc Nguyen
Hailey Marchant and
The Honourable Madam Justice Fitzpatrick
Reasons for Judgment
Counsel for the Plaintiff:
Counsel for the Defendants, Van Cuc Nguyen, Casey Anne
Written Submissions of the Plaintiff
September 20, 2013
Written Submissions of the Defendants, Hailey Marchant and
September 11, 2013
Place and Date of Judgment:
November 19, 2013
The issue to be addressed is the appropriate costs award after trial in
this motor vehicle litigation.
The plaintiff Donna Langille was involved in 3 separate accidents, in
December 2004, December 2009 and August 2010 which resulted in these actions
being filed. The defendants in the first and third actions admitted liability. Liability
was not admitted in the second action (involving the defendants Masahiro,
Hailey Marchant and Patricia Marchant) since there were allegations that Ms. Langille
was at fault or partially at fault for the second accident. Damages were also
in issue in all three actions.
By agreement, all three actions were tried together. After an 11 day
trial, I issued reasons for judgment on August 13, 2013: Langille v. Nguyen,
2013 BCSC 1460 (the Reasons). In accordance with the Negligence Act,
R.S.B.C. 1996, c. 333 (the Act), I found that Ms. Langille was
responsible for the second accident to the extent of 60% with the Marchant
defendants being liable for 40% (the action was discontinued against the
defendant Masahiro prior to trial).
Non-pecuniary damages and special damages were awarded in all three
actions, with a 60% deduction to reflect the apportionment of liability for the
second accident. Damages for past income loss were awarded in the first and
second accident, again with a similar 60% deduction in respect of the amount
for the second accident. An in trust claim was awarded only in respect of the
second accident with the same deduction. Finally, awards were also made for
loss of earning capacity and cost of future care, allocable to all three
actions globally, but after consideration of a deduction for amounts arising
from the second action. (See Reasons, para. 259).
In the Reasons (para. 260), Ms. Langille was awarded
her costs, subject to the parties making further submissions. The Marchant defendants
in the second action now seek a different award of costs. Ms. Langille
defends the original award, taking the position that she is entitled to
recovery of 100% of her costs in all three actions.
(a) Application of the Negligence Act.
The Act provides:
Apportionment of liability for damages
1 (1) If by the fault of
2 or more persons damage or loss is caused to one or more of them, the liability
to make good the damage or loss is in proportion to the degree to which
each person was at fault.
subsection (1), if, having regard to all the circumstances of the case, it is
not possible to establish different degrees of fault, the liability must be
in this section operates to make a person liable for damage or loss to which
the person’s fault has not contributed.
Awarding of damages
2 The awarding of
damage or loss in every action to which section 1 applies is governed by the
(a) the damage or loss, if any,
sustained by each person must be ascertained and expressed in dollars;
(b) the degree to which each
person was at fault must be ascertained and expressed as a percentage of the
(c) as between each person who
has sustained damage or loss and each other person who is liable to make
good the damage or loss, the person sustaining the damage or loss is
entitled to recover from that other person the percentage of the damage or loss
sustained that corresponds to the degree of fault of that other person;
(d) as between 2 persons each of
whom has sustained damage or loss and is entitled to recover a percentage of it
from the other, the amounts to which they are respectively entitled must be set
off one against the other, and if either person is entitled to a greater amount
than the other, the person is entitled to judgment against that other for the
Apportionment of liability for costs
3 (1) Unless the court
otherwise directs, the liability for costs of the parties to every
action is in the same proportion as their respective liability to make good
the damage or loss.
2 applies to the awarding of costs under this section.
as between 2 persons, one is entitled to a judgment for an excess of damage or
loss and the other to a judgment for an excess of costs there is a further set
off of the respective amounts and judgment must be given accordingly.
As superior legislation to the Supreme Court Civil Rules, B.C.
Reg. 168/2009, I must first determine what liability for costs arise under the Act:
Bedwell v. McGill, 2008 BCCA 526 at para. 29, applied in Dodge
v. Shaw Cablesystems Ltd., 2009 BCSC 1765 at paras. 25-26.
The Marchant defendants argue that, given my apportionment of liability
in the second accident and in accordance with the Act, Ms. Langille
should obtain 40% of her costs and they should obtain 60% of their costs.
In Flatley v. Denike (1997), 32 B.C.L.R. (3d) 97 (C.A.), the
Court of Appeal resolved a conflict in the case law as to when the cost
allocation under the Act should arise in the event of divided liability.
In large part, the issue arose from some ambiguity arising from the reference
to liability to make good the damage or loss in s. 3(1) of the Act
which tracks the same language as to apportionment of liability for damages in
s. 1(1) and s. 2(c) of the Act. The issue squarely raised was
whether a defendant, who did not suffer loss or damage, was entitled to recover
his costs from the plaintiff in proportion to the finding of contributory
negligence. McEachern C.J. for the full Court found that such a defendant is not
entitled to costs:
In my judgment s. 2(c) of the present Act
provides that the person sustaining damage or loss is entitled to recover from
a person at fault the percentage of his or her damage or loss to that which
corresponds with defendant’s degree of fault.
 Thus where a defendant has not suffered damage or
loss she or he is obviously not entitled to recover anything from the plaintiff.
 Turning to the question of costs, s. 3, the
liability for costs of the parties "…shall be in the same proportion as their
respective liability to make good the damage or loss…"
 In cases where the defendant has not suffered
damage, the plaintiff is under no liability for costs because the plaintiff’s
liability, if any, would only be in the same proportion as his or her liability
to make good the defendant’s damage or loss, of which there is none.
 As a result I would hold that in cases such as
this, where the defendant suffers no damage or loss, but liability is divided,
the defendant must pay the plaintiff the same proportion of the plaintiff’s
costs as the defendant is liable for the plaintiff’s damages, but the plaintiff
is not liable to pay any portion of the defendant’s costs.
 Nothing I have said affects a party’s entitlement
to costs when the defendant has also suffered damage or loss.
The Marchant defendants argue that in fact, they did suffer damage or
loss as a result of the accident. They point to the evidence at trial that
clearly showed that their vehicle sustained some damage arising from the
collision with Ms. Langilles vehicle. In addition, the driver Hailey
Marchant testified that she suffered some minor aches, scrapes and bruises as a
result of the collision. Finally, Hailey Marchant testified that she had an
emotional reaction to the collision, described as a traumatic event whereby
she was too upset to drive for about a year afterwards.
Despite this alleged loss, the Marchant defendants did not file any
counterclaim against Ms. Langille to seek recovery from her.
It is, therefore, necessary to consider whether costs consequences under
the Act are engaged where there is actual loss suffered by the defendants,
yet no claim or counterclaim is filed, nor is there any finding of liability
against the plaintiff. The Marchant defendants did not refer to any authority
in support of the position that the Act is engaged in these circumstances.
To the contrary, other authorities support the conclusion that the
apportionment of costs under the Act only arises in the event of a
finding of liability against a plaintiff in favour of a defendant in respect of
the damage or loss suffered by that defendant.
One of the lines of authority considered by the Court and adopted in Flatley
was the minority decision of McFarlane J.A. in Lutes v. Leonard (1966),
60 D.L.R. (2d) 459 (B.C.C.A.). McFarlane J.A. interpreted the phrase liable to
make good damage or loss in the Act , as follows at 467:
To replace the words damage or loss in all or any other
places where they occur in s. 3 by the word costs leads to absurd
results. I am accordingly of opinion that the liability for costs under
s. 4 is governed by and dependent upon a liability to make good damage or
loss and not upon the existence of a degree of fault. The words who is liable
to make good damage or loss are quite inappropriate to describe a person who
suffers or bears his own damage or loss. It follows that where there is no
liability to another person to make good damage or loss there is no liability
to that other person for costs.
The importance of a finding of liability against a plaintiff was emphasized
by Southin J.A. in her dissent in Samograd v. Collison (1995), 17
B.C.L.R. (3d) 51 (C.A.), in which she agreed with the opinion of McFarlane J.A.
in Lutes. In her view, the approach of the trial judge was correct in
that only the contributorily negligent plaintiff was awarded a proportion of
his costs given the division of liability. In Samograd, Southin J.A. was
clear in pointing out that the defendant was not injured as a result of the
collision and that the manner in which costs are properly awarded when there
is a claim and counterclaim does not arise on the facts of this case: paras. 29,
Southin J.A.s view was later also adopted by the Court in Flatley:
paras. 17-18, as recently reconfirmed by the Court of Appeal in Bedwell:
In Brown v. Black Top Cabs Ltd.,  B.C.J. No. 2381
(S.C.), the Court ordered divided liability between the parties. On the costs
application, the trial Court awarded costs consistent with the pre-Flatley
case law, although the Court noted that no claim for damages by the defendant
had been advanced since there was no personal injury and his vehicle had only
minor damage (para. 12). The costs allocation was later overturned on
appeal (Brown v. Blacktop Cabs Ltd.,  B.C.J. No. 1627 (C.A.)).
The Court of Appeal found, following Flatley, that the plaintiff was
entitled to her proportionate costs but that as the defendants had suffered no
damage or injury, the plaintiff was not liable to pay them any portion of their
costs (para. 19).
A similar costs issue was also raised in Tourigny v. McSween, 20
C.P.C. (4th) 136 (S.C.). In that case, there was a collision between a motorcycle
and a vehicle. At trial, in the decision indexed as Tourigny v. McSween,
 B.C.J. No. 2846 (S.C.), the Court apportioned liability equally
(which would be later overturned on appeal: Tourigny v. McSween, 1999
BCCA 180 at para. 22). On the costs application in the lower Court, the
defendant argued, similar to the arguments of the Marchant defendants here, that
his vehicle was also damaged (para. 9). Accordingly, he argued that the Flatley
ratio was not applicable and he should also be awarded his proportionate costs
to be set off against the plaintiffs costs. No claim or counterclaim had been
filed by the defendant and there was no evidence that the plaintiff was liable
to pay the defendant for the damage to his car (para. 10).
In Tourigny, following Brown and Southin J.A.s dissent in
Samograd, Kirkpatrick J. (as she then was), declined to order such
 Following the
interpretation placed on the Negligence Act by McFarlane J.A. in Lutes
and adopted in Flatley, I hold that, absent a finding of liability by Mr. Tourigny
to make good any damage or loss to Mr. McSween, there is no liability by Mr. Tourigny
for Mr. McSweens costs.
I would assume that the Court actually meant absent a
finding by the Court that Mr. Tourigny make good any damage or loss,
although the sentiment is clear enough.
Similar to the facts in Samograd, Brown and Tourigny,
no claim or counterclaim was filed by the Marchant defendants against Ms. Langille,
nor was there any finding by the Court that Ms. Langille was liable to pay
the Marchant defendants for the damage to their car or any emotional upset by
Hailey Marchant. To paraphrase the words of McFarlane J.A. in Lutes,
they have chosen to suffer or bear their own damage or loss.
In my view, the correct result in this case is to apply the Act,
as interpreted in Flatley. Accordingly, in these circumstances the
provisions of the Act dictate, at least in the first instance, that Ms. Langille
is entitled to 40% of her costs in respect of the second action with the
Marchant defendants having no claim for costs against Ms. Langille.
(b) Should the Court order another costs award?
Section 3(1) of the Act provides that the Court may vary the
costs award that would otherwise apply. On this basis, Ms. Langille seeks
100% of her costs in the second action.
There is ample authority that the Court may exercise its discretion to
vary a costs award under the Act where an injustice will occur, provided
that such discretion is exercised based on relevant and appropriate considerations.
Madam Justice Ross recently summarized the approach of the Court in Parwani
v. Sekhon, 2010 BCSC 540, citing Moses v. Kim, 2007 BCSC 1820,
varied 2009 BCCA 82:
 The court retains a discretion to depart from the
usual rule, see Peters v. Davidson (1981), 125 D.L.R. (3d) 753
(B.C.S.C.), affd (1982) 41 B.C.L.R. 330 (C.A.). The factors that are to be
addressed in the exercise of this discretion were set out by Madam Justice Gray
in Moses v. Kim, 2007 BCSC 1820, varied 2009 BCCA 82 as follows:
principal consideration for the court is whether an injustice will result by
following s. 3(1): see Forsyth v. Sikorsky Aircraft Corp. (2002),
100 B.C.L.R. (3d) 66, 2002 BCCA 231.
Moore v. Dhillon (1993), 85 B.C.L.R. (2d) 69 (C.A.), Taylor J.A. explained
how the usual rule, as s. 3(1) of the Negligence Act was then
construed, might work well in some circumstances but result in an injustice in
others (at para. 13):
the s. 3 prima facie rule may work well in cases where liability is
divided between defendants only, and where there are cross-claims between
plaintiff and defendant, there is potential for injustice when the prima
facie rule is applied without exercise of discretion in cases, such as
this, where division of fault is as between a successful personal injury
plaintiff and a defendant who has suffered no injury or damage, or who has
already been fully compensated for any injury or damage suffered. This is
demonstrated by the Law of Reform Commission of B.C. in its 1993 report
entitled ‘Apportionment of Costs and Contributory Negligence: Section 3 of the
Negligence Act.’ The prima facie rule would plainly work an injustice in
the present case.
authorities demonstrate many factors the court has considered in exercising
this discretion. Among them are the following:
seriousness of the plaintiff’s injuries;
difficulties facing the plaintiff in establishing liability;
(c) the fact that in settlement
negotiations the amount offered was substantially below the ultimate amount;
(d) whether the plaintiff was forced
to go to trial to obtain recovery;
costs of getting to trial;
difficulty and length of the trial;
(g) whether the costs recovery
available to the plaintiff, if costs are apportioned according to liability,
will bear any reasonable relationship to the party’s costs in obtaining the
(h) the positions taken by the
parties at trial, in particular whether the positions taken were appropriate
and reasonable in the circumstances;
the defendants made any settlement offers;
ultimate result of the trial; and
(k) whether the plaintiff achieved
substantial success that would be effectively defeated if costs were awarded
pursuant to s. 3(1) of the Negligence Act.
Forsyth, supra, and Logeman v. Rossa,  B.C.J. No. 963
(QL), 2006 BCSC 692.
It is necessary at this point to discuss some further history of these
As I have said, Ms. Langille was involved in three accidents. She
was moderately injured in the first accident in 2004 and slightly injured in
the third accident in 2010 although her injuries in the last accident resulted
in an aggravation of her existing injuries from both the first and second
accidents. Her most serious injuries were suffered in the second accident in
2009 by reason of which she was hospitalized and off work for approximately six
Again, liability was only disputed in the second action. Ms. Langille
asserted that the Marchant defendants were 100% liable while the Marchant
defendants asserted that Ms. Langilles liability was between 80-100%. In
the result, the Marchant defendants were held to be 40% at fault, with Ms. Langille
being 60% at fault.
The effect of Ms. Langilles injuries was a significant issue at
the trial. Both Ms. Langille and the defence called substantial medical
expert testimony as to her symptoms, treatment, diagnoses and prognosis. As I
noted in the Reasons, at the end of the day, the parties were not
terribly far apart as to the extent of her injuries, save for two issues
arising from one medical report introduced by Ms. Langille (paras. 131-155).
In large part, I accepted the evidence of Ms. Langilles expert witnesses,
having rejected suggestions by the defence that she had pre-existing
symptomology. Ms. Langille also called various collateral witnesses in
support of her claims. My conclusion at trial was that as a result of her
serious injuries from all three accidents, Ms. Langille was suffering from
a permanent partial disability involving ongoing chronic pain (Reasons, para. 154).
Submissions on non-pecuniary damages were made between $100,000 (the
defence) and $130,000 (Ms. Langille) and the result was an award of
$110,000. The allocation as between the first, second and third actions was
$35,000, $55,000 (before the 60% deduction) and $20,000, respectively.
Ms. Langilles claim for loss of earning capacity was also allowed
based in part on that extensive medical evidence. Despite her claim for
$175,000, and despite the defendants position that no claim was proven, she
was awarded $50,000. Similarly, Ms. Langilles disputed claim for costs of
future care for a total in excess of $27,000 was only allowed in the amount of
$6,725 before deduction for the contributory negligence. Her disputed in
trust claim of $10,000 was largely successful as I awarded $7,000 before a
deduction in accordance with the Act. Certain lost income claims of Ms. Langille
relating to the first and second accidents were agreed to by the parties.
Beyond that, Ms. Langilles claim for lost income of $75,000 arising from
the accidents, which was said to arise from her inability to work a second job
or overtime, was dismissed. Special damage amounts for all three actions were
The defendants submit that they did not take unreasonable positions and
I agree with that proposition. By the same token, Ms. Langille made
concessions where appropriate. On the most contentious issues, Ms. Langille
was largely successful (non-pecuniary damages and the in trust claim),
somewhat successful (loss of capacity and cost of future care) and not
successful at all (further past income loss).
In opposing an award of 100% costs in favour of Ms. Langille, the
Marchant defendants argue that they, and the other defendants, made settlement
offers to Ms. Langille, without success.
The Marchant defendants say firstly that the defendants in the first
action made two offers in October 2007 and August 2008, the latter being an
amount which likely did not exceed the amount awarded (I say not likely because
some of the awards at trial were made on a global basis without allocation as
between the various actions). I frankly do not see that these offers are relevant
at all given that the costs issue on this application relates solely to the
The offers to settle which are potentially more relevant were exchanged
by the parties just days before the commencement of the trial. On February 6,
2013, Ms. Langille offered to settle for $225,000 and a day later on
February 7, 2013, all of the defendants offered to settle for $110,000. The
amount awarded was just over $151,800 so it exceeded the defendants offer by
almost 40%. As such, no costs consequences are sought by either party under Supreme
Court Civil Rule 9-1. In my view, the exchange of these offers is a neutral
factor since neither party was proved wrong in retrospect.
The Marchant defendants do not point to any other factor in arguing that
Ms. Langille should not be awarded costs in excess of 40% of her costs.
The Marchant defendants do rely on various post-Flatley cases
where the Court found no reason to depart from the result under the Act:
Pang v. Westfair Properties Pacific Ltd.,  B.C.J. No. 1427 (S.C.);
Selles (Guardian ad litem of) v. Ling, 2000 BCSC 51; Smith v. Knudsen,
2002 BCSC 383, revd 2004 BCCA 613; Rimmer (Guardian ad litem of) v. Langley
(Township), 2007 BCSC 340; Parwani; and Currie v. Taylor,
2013 BCSC 1071. All of these decisions are of course fact dependent (per the Moses
factors) and while some aspects of the reasoning in those cases apply, none
are directly applicable to the circumstances here.
It cannot be understated that Ms. Langille was required to proceed
to trial to establish her claims for recovery arising from her serious injuries.
She was substantially successful in advancing her claims. It was, as described
in Rimmer, hard-fought but fairly-fought on both sides. The trial,
while not involving particularly difficult issues, was complicated by the fact
that three separate accidents were being considered. The medical evidence introduced
by all sides was extensive and had to be related in some detail to the
respective timelines in terms of assessing the damages arising from each
separate accident. I have no doubt that Ms. Langille expended substantial
sums of money over the nine years leading up to the trial to marshal her
This case can be distinguished from the facts in Parwani where
the Court found that the plaintiff was substantially unsuccessful at trial and
that it was not a case of needlessly requiring a plaintiff to prove a case
that was bound to succeed, in whole or in part (para. 13). In addition,
the Court in that case considered a settlement offer by the defendants in
excess of the amount recovered. Here, Ms. Langilles only recourse was to
proceed to trial to establish her claims, which she did and in large part, she substantially
succeeded in establishing her claims. She also recovered in excess of the
amount offered by all the defendants just days prior to the trial.
In similar circumstances, the plaintiffs in Forsyth v.
Sikorsky Aircraft Corp., 2002 BCCA 231, were awarded 100% of their costs
even though some of the plaintiffs had been found to be contributorily
 In summary, this is a
case in which the plaintiffs were put to the proof of a difficult and lengthy
case in order to recover any compensation for their losses. They enjoyed success
on almost all of the liability issues and recovered damages in excess of
$1,500,000.00, which was substantially more than the defendants had offered in
settlement negotiations. In my opinion, the factors to which I have just
referred provide support for the trial judge’s conclusion that to award costs
based on the prima facie rule under s. 3 of the Negligence Act,
assessed at 50% of special costs, would have produced an "unjust"
result. Had the trial judge not exercised his discretion, the costs recovery
available to the plaintiffs would not have borne any reasonable relationship to
their costs in obtaining the result achieved.
It is of course the case that the Court may allow or disallow costs to a
party in relation to a portion of a trial: Supreme Court Civil Rule
That option has led to this Court and the Court of Appeal imposing what
can be described as a blended calculation of the costs recovery in such
circumstances. In Moses, cited above, the Court reduced the costs
recovery of the plaintiff to 90% (which was later reduced to 75% on appeal) to
reflect the time spent on the liability issue and the allocation of
contributory negligence (65%) to the plaintiff. Similarly, in Siewert v.
Elden, 2008 BCSC 88, the Court considered that the plaintiff was forced to
go to trial to obtain recovery even though she was found 50% contributorily
negligent. In that case, as is the case here, the vast majority of the time was
spent on damages. The Court ordered that the plaintiff recover 90% of her costs
and 100% of her taxable disbursements. In Gowler v. Ngo, 2011 BCSC 1428,
a 50/50 split on liability yielded a costs award of 65% in favour of the
plaintiff. In this case, the liability portion of the trial took three days out
of 13 days at trial. In Wong-Lai v. Ong, 2012 BCSC 1569, the plaintiff
was found to be 75% contributorily negligent and the prima facie
application of the Act would have substantially reduced her recovery.
The Court allowed recovery of 2/3 of her taxable costs.
An important factor in this case is the fact that all three actions were
being tried at the same time. The only other case referred to me involving
multiple accidents was Gowler which involved two motor vehicle
accidents. The majority of the time at trial in that case was spent on the
first accident and the costs decision only arose in the context of that action.
Even if I was inclined to order a blended costs award, the overarching
concern I have is that it is inevitably difficult to tease out the costs of
only the second action (i.e. the subject matter of this costs application)
given the manner in which all three actions were tried together. I mean this as
no criticism of the parties and counsel, as the agreement to proceed in this
fashion made imminent sense in terms of trying these actions in a rational,
efficient and cost effective manner.
With respect to the damage issues, witnesses gave their testimony of
course on a global basis and it can be said that the majority of witnesses were
giving relevant evidence with respect to all three actions. I am advised that
the majority of the substantial disbursements incurred by Ms. Langille
(approximately $52,000) relate to the damage claims in all actions, and
principally the costs of the medical experts providing their reports and
attending at the trial. Importantly, there does not appear to have been any significant
disbursements specific to the liability issue in the second action.
An exercise in attempting to allocate these disbursements as between the
various actions and applying a 60% discount to such figures attributable to the
second action is, to my mind, akin to trying to unscramble an egg. Even if such
an attempt were to be made, I agree with the submissions of Ms. Langilles
counsel that this would result in a difficult, prolonged and expensive
proceeding which might yield minimal results in the end.
The time spent on the liability issue in the second action was somewhat more
discrete and involved a portion of Ms. Langilles testimony as well as the
entire testimony of the defendants Masahiro and Hailey Marchant. Based on
submissions and with my estimate of how long Ms. Langille gave evidence on
the issue, I surmise that the total testimony was no more than 2 ¾ hours of
court time out of the total ten days of trial in the presentation of the
evidence (there would also have been time for argument on the issue). Accordingly,
the assessed costs dollar figure attributable to the preparation and attendance
time on the liability issue, after the discount, is nominal.
I conclude in all the above circumstances that it would be unjust to
order anything but 100% costs in favour of Ms. Langille. As I have stated,
Ms. Langille was required to proceed to trial for the recovery of damages
for her serious injuries. She was substantially successful. While she was less
successful on the discrete issue of liability for the second accident, the
exercise of even estimating those costs would be time consuming, expensive and
likely of little practical benefit.
My earlier award of 100% costs in favour of Ms. Langille is confirmed
in respect of all three actions.
The entire group of defendants also made submissions relating to the
settling of the orders in all three actions. In her response, Ms. Langille
substantially agreed to the proposed form of orders, subject to a minor
clarification regarding the third action (to remove a reference to income loss)
and also to insert the pre-judgment calculations in all three orders. I agree
with the changes proposed by Ms. Langille.
Ms. Langille is also awarded her costs in making these later submissions
on the costs issue.