IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141205

Docket: 45162

Registry:
Kamloops

Between:

Curtis Hampton

Plaintiff

And

Ryan Osachoff,
Donald Osachoff
and Deana Osachoff

Defendants

And

Insurance
Corporation of British Columbia

Third
Party

Before:
Master R.W. McDiarmid

Reasons for Judgment

[1]            
This is an assessment of the bill of costs of the plaintiff, Curtis
Hampton. The background facts are set out in the affidavit of Joseph Zak made
and filed September 12, 2014, in paragraphs 2 through 14 as follows:

A. THE CLAIM

2.         This action was brought for the recovery of
damages for personal injury and loss suffered by the plaintiff as a result of a
pedestrian/motor vehicle collision that occurred on February 14, 2009. At that
time, the plaintiff was standing with a group of his friends at the comer of
4th Street East and Temple Street in Revelstoke, B.C. when he was struck by a
Dodge Dakota pick-up truck owned by the defendants, Donald Osachoff and [Deana]
Osachoff, and operated by their son, the defendant, Ryan Osachoff ("Osachoff’).

3.         Osachoff was subsequently charged under the
Criminal Code of Canada and later pled guilty to the offence of dangerous
driving causing bodily harm.

4.         The Insurance Corporation of British Columbia
denied liability to indemnify Osachoff and entered a third party notice in this
proceeding contesting liability and quantum.

5.         The plaintiff claimed general and special damages,
past income loss, impairment of income earning capacity and aggravated damages.

6.         The claim for aggravated damages took into account
the nature of Osachoffs’ conduct and express lack of remorse.

B. THE ACTION

7.         This action was commenced on January 14, 2011.

8.         The trial was initially set for hearing for
November 19, 2012.

9.         On May 14, 2012, the plaintiff applied to adjourn
the trial to enable            him an opportunity to determine the extent of
his residual disabilities. The application was contested. The matter was heard
by Master McDiarmid who ordered that the trial be adjourned with costs of the
application awarded to the plaintiff in any event of the cause.

10.       The trial was rescheduled to commence on June 9,
2014.

11.       The claim was settled in May 2014 for $280,000.00 plus
costs and disbursements to be assessed.

C. CURTIS HAMPTON

12.       The plaintiff was 20 years old at the time of the collision
and was an electrical apprentice. He is now 25 and is employed full time in
Terrace, B.C.

13.       The plaintiff was and remains single. He has no
dependants.

14.       The plaintiff suffered a number of injuries in the
subject accident including the following:

(a)        broken right tibia and undisplaced fracture of
the fibula

(b)        injuries to right and left elbows

(c)        injury to right knee

(d)        injury to upper and lower back complaints

(e)        headaches

(f)         bruises and abrasions

[2]            
Pursuant to the Law Society of British Columbia Professional Conduct
Handbook, c. 5, s. 5.2-1, I permitted Mr. Zak to appear as advocate and
submit his own affidavit evidence. In these reasons, when I refer to the
“defendants/third party”, I am referring to the defendants, Donald Osachoff and
Deana Osachoff, and to the third party, Insurance Corporation of British
Columbia (“ICBC”). I am not referring to the defendant, Ryan Osachoff. If it is
necessary to refer to the defendant, Ryan Osachoff, I will do so by naming him.

[3]            
In support of the plaintiff’s position on the disputed costs and
disputed disbursements, I reviewed Mr. Zak’s affidavit. I also reviewed an
affidavit of Lola Mondin made and filed September 12, 2014 and a second
affidavit of Lola Mondin made and filed September 15, 2014. Ms. Mondin is a
legal assistant who works with HMZ Law, solicitors for the plaintiff. I also
reviewed the first and second affidavits of Kim Dolson, the office accountant
with HMZ Law. The first affidavit was made and filed September 25, 2014 and the
second affidavit was made and filed October 1, 2014. I reviewed an affidavit of
the plaintiff made April 13, 2012 and filed April 27, 2012, and the subsequent
affidavit of the plaintiff made September 12, 2014 and filed September 16,
2012. I reviewed an affidavit of Daniel Hampton, the plaintiff’s father, made
April 26, 2012 and filed April 27, 2012. All of those affidavits were filed on
behalf of the plaintiff.

[4]            
I also reviewed an affidavit of Tracey Hobson, legal assistant for
counsel for the defendants/third party. Her affidavit was made October 6, 2014;
the version of her affidavit I reviewed was unfiled.

TARIFF ITEMS

[5]            
There are disputes over tariff items #2, 10, 14, 23 and 32.

Tariff Item #2

[6]            
As was stressed by counsel for the defendants/third party, units are to
be awarded “for which provision is not made elsewhere in this tariff.” The
plaintiff claimed 20; the defendants/third party submitted that 15 units was
more appropriate.

[7]            
Some of what was submitted by Mr. Zak related to discussions with
potential witnesses. This is provided for under item #18, for which 7 units is
claimed and not disputed. I agree to some extent with submissions by Mr. Zak
that this was not a standard case. It included a claim for aggravated damages
following the criminal behaviour of the defendant, Ryan Osachoff.
Investigations relating to that claim are not provided for elsewhere and result
in my determination that more than the mid-point should be allowed for item #2.
I allow 18 units for that item.

Tariff Item #14 – Notices to Admit

[8]            
During submissions, a notice to admit dated May 6, 2014 was filed as
exhibit 2 in these proceedings.

[9]            
I granted Mr. Zak leave to provide a copy of the May 12, 2014 notice to
admit.

[10]        
The May 6, 2014 notice to admit sought admissions of eight facts. Facts
#1 through 6 are what I will call normal procedural facts dealing with
ownership of the defendants’ vehicle, driving with consent of the owners, date,
time, and location of the collision, those sorts of facts.

[11]        
Facts #s 7 and 8 dealt with the charge and subsequent conviction and
sentencing of Ryan Osachoff to a charge of dangerous driving under s. 249(3) of
the Criminal Code. There were seven documents, authenticity of which
admission was requested. These included a statement given by Ryan Osachoff to a
member of the RCMP, 14 photographs taken by the RCMP, the reasons for the
sentencing of Ryan Osachoff, and four certificates of conviction for Ryan
Osachoff’s four prior criminal convictions.

[12]        
His May 12, 2014 notice to admit sought admission of 30 documents. Most
of these documents dealt with non-controversial documentation setting out the
plaintiff’s education and work history, payroll records and tax returns. As
well, 27 photographs were sought to be admitted by the notice to admit.

[13]        
Although the subject matter of the May 6, 2014 notice to admit was
somewhat unusual in the context of the “usual” motor vehicle accident
litigation, it was not a lengthy nor difficult notice to admit to prepare. On
the other hand, the May 12, 2014 notice to admit did away with the need to call
several witnesses had the trial proceeded.

[14]        
The entire notice to admit process is encompassed in item #14, which
references “notices” plural. The range is from 1 to 5 units; I allow 4 units.

Item #23 – Application by Requisition

[15]        
The plaintiff erroneously claimed 2.5 units for videoconferencing;
during submissions it was agreed that no units ought to be allowed for that
claim.

[16]        
Also under item #23 was a claim by the plaintiff for 2.5 units (the
mid-point) for obtaining interprovincial subpoenas for various witnesses. The
defendants/third party submitted that 1.5 units ought to be allowed.

[17]        
Interprovincial subpoenas require a level of detail that is not the sort
of thing that would be readily at hand for plaintiff’s counsel and his staff.
After hearing his submissions, I am satisfied that 2.5 units should be allowed
as claimed.

Item #32 – Attendance at a Trial Management Conference

[18]        
There was a trial management conference on May 1, 2014. Counsel for the
defendants/third party submitted that a bulk of time expended on trial
management conferences was for preparation, and no issue was taken with the 2
units claimed for that preparation under item #31. Attendance at the trial
management conference was submitted to be minimal.

[19]        
The range for units under item #32 is a minimum of 1 unit and a maximum
of 5 units; the plaintiff is claiming 3 units. I allow 2 units.

Other Items

[20]        
During submissions, the plaintiff agreed that the amounts submitted by
the defendants/third party, 3 units for item #10, was appropriate. There was a
discussion about entitlement to one of the applications heard May 20, 2014.
This affected claims under item #21 (preparation for the application), item #22
(attendance to hear the application) and item #41 (entry of an order resulting
from the application).

[21]        
After an adjournment to facilitate discussion between counsel, counsel
for the defendants/third party agreed that the plaintiff’s claims, as set out
on the bill of costs for 1.5 units under item #21, 2.5 units under item #22,
and 1 unit under item #41 were appropriate.

[22]        
A similar concession was made by counsel for the defendants/third party
with respect to an application heard May 26, 2014. In both cases, the initial
submission was that the order was that each party bear their own costs. After
an opportunity for discussion, counsel for the defendants/third party agreed
that the plaintiff was entitled to the amount claimed for that application;
namely 1.5 units under item #21(a), 2.5 units under item #22(a) and 1 unit
under item #41.

[23]        
In the result, the plaintiff’s bill is reduced by 9.5 units; 102.5 are
allowed, which at $110.00 per unit is $11,275.00 to which is added P.S.T. of
$789.25 and G.S.T. of $563.75 for a total of $12,628.00.

DISBURSEMENTS

Dr. Hershler

The Third Medical-Legal Report of Cecil Hershler

[24]        
The evidence with respect to the medical assessments of Dr. Hershler is
set out in Mr. Zak’s affidavit at paragraphs 22 through 33. In paragraphs 22
and 23, Mr. Zak deposes as follows:

22.       The plaintiff was assessed by Dr. Paul Dooley,
treating orthopaedic specialist, on numerous occasions over the course of his
recovery. Dr. Dooley’s sole focus, however, was treatment of the broken fibula.
He did not address the soft tissue injuries and related disorders arising from
the collision.

23.       Considering the plaintiff’s youth, his chosen
occupation and the nature of the injuries sustained, I believed that it was
necessary to have him evaluated by a physical medicine and rehabilitation
specialist (“physiatrist”). A review by a physiatrist would address the plaintiff’s
ongoing complaints and residual disabilities particularly from a functional
perspective.

24.       I chose Dr. Cecil Hershler to examine the plaintiff.
Dr. Hershler has a well established reputation and has been qualified in other
cases to give expert opinion evidence in the Supreme Court of British Columbia.

25.       Dr. Hershler first examined the plaintiff on
November 14, 2011. In his medical/legal report of the same date, a copy of
which is attached hereto as Exhibit 2, Dr. Hershler gave the following
opinion:

It is almost 2.5 years post-accident and Mr. Hampton still
[complains] of pain [in] the region of his right ankle after hours of walking,
hiking or work. In my own practice, 80% of patients with these types of
injuries will achieve recovery within three years. By “recovery”, I mean that
the symptoms decrease steadily to tolerable levels and the individual is able
to attain a full recovery of function, including endurance. Another 10% of
patients take five years and 10% continue to complain, permanently, of symptoms.

Given this model of recovery, it is my opinion that Mr.
Hampton will probably continue to be symptomatic for another two years, if not
longer.

***

I anticipate that Mr. Hampton will continue to experience
symptoms of pain after his work shifts over the next couple of years. Mr.
Hampton is determined to make a success of his career. It is likely that he
will still complete his apprenticeship successfully but at the expense of pain.

A reassessment in two years will allow me to be clearer with
respect to Mr. Hampton’s long term prognosis.

26.       The defendant refused to consent to an adjournment
of the trial to facilitate a further review by Dr. Hershler. Consequently, the
application of May 14, 2012 was brought with the result that the trial was
adjourned and rescheduled for June 9, 2014.

27.       The plaintiff was reassessed by Dr. Hershler on May
7, 2013 following which Dr. Hershler prepared an addendum medical/legal report
dated May 8, 2013, a copy of which is attached hereto as Exhibit 3.

28.       At that time, Dr. Hershler gave the following
prognosis:

It is now over four years since the accident, and Mr.
Hampton continues to have complaints of pain (predominantly in the right ankle,
but also (at different times) in the lower back, shoulder blade region or even
in the head. Given the length of time that has elapsed, it is unlikely that his
symptoms will simply resolve of their own accord. It is more likely than not
that he will have to deal with this pain indefinitely.

Mr. Hampton has shown admirable pain tolerance and an
ability to adapt, and I see no reason why he shouldn’t be able to continue
doing this. As he ages, however, he will find it more difficult to do tasks
that involve prolonged standing and walking. It will be in his best interest to
do jobs that are varied and that give him the opportunity to change
weight-bearing postures. It is important that he maintain physical fitness and
strength, particularly around the right ankle and generally throughout the
spine. For this reason, I would recommend that he continue to exercise on a
daily basis.

If possible, it would be helpful for Mr. Hampton to undergo
a program of Pulsed Electromagnetic Field Therapy through the right ankle. He
would need nine one-hour treatments, the full cost of which is $1,500. Attached
to this report is a short summary of the research associated with this
treatment modality.

29.       In an effort to maximize his rehabilitation, the
plaintiff underwent the recommended program of Pulsed Electromagnetic Field
Therapy at a cost of $1,500.00. Upon completion of the program, I made
arrangements for the plaintiff to attend for a final assessment. That
evaluation was conducted by Dr. Hershler on January 14, 2014.

30.       The importance of such an evaluation prior to the
trial of this action was, of course, whether the treatment had improved the
plaintiff’s condition and physical tolerance. In his addendum medical/legal
report dated January 17, 2014, a copy of which is attached hereto as Exhibit
4, Dr. Hershler concluded that, “Despite a further treatment modality
(Pulsed Electromagnetic Field Therapy) for the ankle, there has been no
significant change. The modality provided only transient relief.”

31.       The need for this final examination was underscored
by a defence medical evaluation that had earlier been performed by Dr. Richard
Loomer, orthopaedic surgeon. Dr. Loomer assessed the plaintiff on December 6,
2011 following which he prepared his report of the same date, a copy of which
is attached hereto as Exhibit 5.

32.       Dr. Loomer had concluded that the plaintiff had
made good recovery and, in Dr. Loomer’s opinion, had a high prospect for
complete resolution of his symptoms. At pages 7 and 8 of his report, Dr. Loomer
had given the following prognosis:

His fracture appears to be well healed and in good position.
I think Mr. Hampton can expect continued excellent function [from] his leg and
foot although this may not return to completely normal for another 6 months or
so. There is perhaps a very slight chance that he may develop osteoarthritis of
his ankle joint in the distant future. I think this is a very small chance.

The soft tissue injury to his spinal area has healed quite
well and requires no further treatment and is only mildly symptomatic now and
should return to completely normal within another 6 months.

33.       I also took advantage
of the appointment with Dr. Hershler to have him comment on the cost of care
recommendations that had been made by Jane Burns, registered physiotherapist,
OT Consulting/Treatment Services. Ms. Burns had conducted a physical capacity
evaluation of the plaintiff on November 7, 2013, following which she had made
future care recommendations for physiotherapy, chiropractic care and orthotics.
It is my practice to always have a doctor review treatment recommendations in
advance of a trial to confirm that such expenses are medically justified. Dr.
Hershler reviewed and addressed the recommendations made by Ms. Burns as well
as commented on further pain management strategies.

[25]        
Dr. Hershler first examined the plaintiff on November 14, 2011, which,
in his report he noted was “almost 2.5 years post-accident”. After giving an
opinion that Mr. Hampton will probably continue to be symptomatic for another
two years, if not longer, Dr. Hershler recommended a reassessment in two years,
which “will allow me to be clearer with respect to Mr. Hampton’s long-term
prognosis”. In paragraph 27 of his affidavit, Mr. Zak deposes as follows:

27.       The plaintiff was
reassessed by Dr. Hershler on May 7, 2013 following which Dr. Hershler prepared
an addendum medical/legal report dated May 8, 2013, a copy of which is attached
hereto as Exhibit 3.

[26]        
The May 8, 2013 report is entitled “Addendum to Medical Legal Opinion”.
In the third paragraph of the opinion, that fact is restated, confirming that
the report is an addendum to Dr. Hershler’s medical-legal opinion dated
December 12, 2011, based on a further assessment of the plaintiff on May 17,
2013. The addendum report concludes as follows:

If possible, it would be helpful
for Mr. Hampton to undergo a program of Pulsed Electromagnetic Field Therapy
through the right ankle. He would need nine one-hour treatments, the full cost
of which is $1,500. Attached to this report is a short summary of the research
associated with this treatment modality.

[27]        
The defendants/third party take no issue with the first two reports, nor
with the costs associated with those reports. They concede that it was
reasonable to have a second assessment, especially in view of Dr. Hershler’s
recommendation for a reassessment and the fact that the plaintiff, at that
point, had been working full-time for an extended period.

[28]        
The January 17, 2014 report is four pages in length. It states that it
is an addendum to the two previous reports. The report states on page 2:

In compiling this Addendum, I have
reviewed a Physical Capacity Evaluation report from OT Consulting/Treatment
Services Ltd. (submitted by Jane Burns, Physiotherapist) and dated December 18,
2013.

[29]        
The January 17, 2014 addendum confirms that the pulsed electromagnetic
field therapy program provided one to two weeks of pain relief, but then with
pain gradually returning to its pre-treatment levels.

[30]        
There was a mention in the report of Mr. Hampton suffering from
intermittent headaches associated with nose bleeds. The May 8, 2013 addendum commented
on the plaintiff’s complaint that he experienced headaches when wearing hard
hats, and more severe headaches when he has to wear specialized equipment, like
a specialized respirator in the course of his employment. Dr. Hershler’s
prognosis, “remains as documented on page 3 of the medical-legal addendum of
May 8, 2011.” He makes some comments on the physical capacity evaluation report
of Jane Burns and gives some recommendations with respect to further pain
management strategies.

[31]        
In his instruction letter of January 10, 2014, exhibited to the
affidavit of Tracy Hobson, legal assistant for counsel for the defendants/third
party, Mr. Zak requests that Dr. Hershler review the physical capacity
evaluation report, directs Dr. Hershler to comment in the report about
headaches associated with a nose bleed, and asks Dr. Hershler to review the
cost of care recommendations and provide an opinion as to whether those are
medically necessary.

[32]        
Dr. Hershler invoiced $2,400.00, plus five percent G.S.T. On my review
of the bill of costs, that is the same amount as he billed for the May 8, 2013
report in which Dr. Hershler reviewed documentation listed in a two-page index
of reports comprising three medical reports, a diagnostic imaging report, two
transcripts, a welding certificate and 41 pages of clinical records. In reading
Mr. Zak’s affidavit, paragraphs 22 through 33, and in particular, paragraphs 30
through 33, it is apparent that the primary reason why Mr. Zak requested a
third evaluation and report, was to determine whether the pulsed
electromagnetic field therapy treatment had improved the plaintiff’s condition
and physical tolerance.

[33]        
No opinion was required for that evidence; what Dr. Hershler wrote on
page 2 of his January 17, 2014 report was merely a restatement of what he was
told by the plaintiff.

[34]        
In Rolston v. Canadian Northern Shield Insurance Co., 2014 BCSC
1896, Dley J. summed up the issue which faces a registrar in dealing with
disputed disbursements, which is related to an issue facing competent counsel in
properly representing a client. At paras. 13-16, Dley J. writes:

[13] Too often, litigation has become a haven for experts to
dress up evidence within the guise of opinion evidence when the facts do not
need such an intervention. In those instances, the litigation costs
unnecessarily increase as does the time required for trial.

[14] A party is free to engage whatever expert it deems to be
of assistance in preparing its case. However, that party should not necessarily
expect that the disbursements incurred will be passed on to the losing party.
It is to be emphasized that the disbursement must have been necessarily or
properly incurred.

[15] Parties to litigation and their counsel are often faced
with difficult decisions in the conduct of a proceeding. As long as the costs
incurred are necessary or proper, those decisions are not subject to
second-guessing. Whether a disbursement is necessary or proper is to be decided
within the circumstances of the particular case.

[16] The only question in this
case is whether at the time the accountant was engaged, the disbursements
associated with that retainer were necessary or proper.

[35]        
As was pointed out by counsel for the defendants/third party, Dr.
Hershler addressed future care in his first two reports. In the November 14,
2011 medical-legal opinion letter, under the heading “Prognosis”, Dr. Hershler
gives a recommendation for rehabilitation, including 12 sessions of
physiotherapy over the next two years, and sets out the objective of that
physiotherapy.

[36]        
In the May 8, 2013 addendum, he recommends the pulsed electromagnetic
field therapy, as well as a recommendation for continuing exercise. He does not
address future care in any detailed way in his second report.

[37]        
The cost of future care report was not placed before me in evidence. A
portion of that report commented upon by Dr. Hershler; namely the
recommendations, is set out as follows:

As mentioned earlier, I have read
the Physical Capacity Evaluation submitted by Jane Burns and dated December 18,
2013. I agree with the conclusions in that report, specifically with respect to
the recommendations on pages 11 & 12. The only exception is with respect to
chiropractic, for which I see no necessity at this stage. As far as
physiotherapy is concerned, I do not think this would be valuable. I recommend
that Mr. Hampton have six sessions of physiotherapy per year on an ongoing
basis, with the objective being to provide him with an assessment of his
exercise program and an adjustment to the exercises if necessary. Mr. Hampton
will need to continue exercising daily on his own. I also agree with the
recommendation for ongoing assessments of his boots and orthotics, which will
need to be replaced as needed.

[38]        
As Justice Dley noted in para. 33 above, the party is free to engage any
expert, but should not necessarily expect that the disbursements incurred will
be passed on to the losing party.

[39]        
The third report was required, in Mr. Zak’s view, as he stated in paragraphs
31 and 32 of his affidavit. He comments on a prognosis of Dr. Loomer, an
orthopaedic surgeon who assessed the plaintiff on behalf of the
defendants/third party. Dr. Loomer’s report, based on a visit by the plaintiff
on the same day, was dated December 6, 2011. He phrased the prognosis for
recovery of the ankle fracture  in a negative manner, stating:

His fracture appears to be well
healed and in good position. I think Mr. Hampton can expect continued excellent
function from his leg and foot, although this may not return to completely
normal for another 6 months or so. There is perhaps a very slight chance that
he may develop osteoarthritis of his ankle joint in the distant future. I think
this is a very small chance.

[40]        
As noted, Dr. Loomer’s assessment of the plaintiff was on December 6,
2011; the second assessment of the plaintiff by Dr. Hershler was almost exactly
six months later, on May 7, 2013. That report confirmed that pain persisted and
in its prognosis stated:

Given the length of time that has
elapsed, it is unlikely that his symptoms will simply resolve of their own accord.
It is more likely than not that he will have to deal with this pain
indefinitely.

[41]        
In the circumstances of this case, there was no need to have a further
assessment of the plaintiff by Dr. Hershler. That was neither necessary nor
proper.

[42]        
A review by Dr. Hershler of the cost of care recommendations was proper
and might have been of assistance to both parties. Dr. Hershler opined that the
chiropractic care apparently recommended by Jane Burns was not viewed as
necessary by him. Jane Burns appears to have also recommended physiotherapy;
Dr. Hershler had recommended physiotherapy in his prior report.

[43]        
The disbursements for the plaintiff’s attendance to see Dr. Hershler
were neither necessary nor proper. The bulk of Dr. Hershler’s report was
neither necessary nor proper. A portion of that report was proper. I allow
$800.00, plus applicable taxes, and disallow the remaining $1,600.00 cost of
the report, as well as the client travel and airfare charges in their entirety,
together with the associated G.S.T. on those charges.

Charges related to Dr. Donald Cameron, Neurologist

[44]        
The defendants dispute disbursements of $4,667.60 related to Dr.
Cameron’s assessment and subsequent report dated February 24, 2014. The matters
in dispute includes Dr. Cameron’s charge, client travel charges, including
airfare, and GST. In their written submissions, the defendants state “There is
no evidence that the Plaintiff struck his head” and referred to examination for
discovery extracts.

[45]        
Question and answer 307 from the plaintiff’s examination for discovery
is as follows:

Q         Did you hit your head?

A          I don’t remember.
All I know is I don’t remember little bits and pieces of being hit, not
spinning, stopping spinning, not getting on the pavement, rolling around on the
pavement, not quite remembering what happened, then everything around me with
the cop.

[46]        
I also note question and answer 600-601, which I will not reproduce in
total, but the conclusion of answer 601 and questions 602-603 are as follows:

 So I won’t wear those respirators again because
of the severe headache it gave me. I have worn the half mask for two weeks and
at times it has given me a headache too, but it’s bearable.

Q         Now I take it wearing this respirator
apparatus is something new for you?

A          Yes.

Q         That is you never tried that before the motor
vehicle accident?

A          Not that
particular one. I have had different masks, I have worn in the past, and I
hadn’t had a problem with them causing any discomfort.

[47]        
According to the affidavit of Tracey Hobson, legal assistant to counsel
for the defendants/third party, this examination for discovery was held on July
18, 2012. In her written submissions, counsel for the defendants/third party
writes:

The Plaintiff’s father noticed
subtle changes in the Plaintiff’s behaviour after the accident.

[48]        
This is in reference to the affidavit of Daniel Hampton, the plaintiff’s
father. His affidavit was made April 26, 2012 and filed the next day. In
paragraphs 8 and 9, he deposes:

8.         These changes in behaviour are subtle. Although
not alarming or substantial in any particular way, again causes me some concern
over the full extent of the trauma that Curtis suffered in the accident.

9.         I relayed this
information to Joseph Zak, my son’s lawyer. A copy of my letter dated December
14, 2011 to Mr. Zak is attached as Exhibit 1.

[49]        
The letter referred to contains the following:

However these things I have noticed;

·       
While finishing 12^th grade math, physics and drafting
11 he seemed to frustrate more rapidly than prior to the accident on similar
tasks.

[50]        
Counsel for the defendants/third party points out that, while in their
view there was little objective evidence, they are not challenging the
disbursements for the assessment by Dr. James P. Schmidt, a neuropsychologist.

[51]        
Dr. Schmidt was asked to evaluate the plaintiff and:

“provide me with your report
setting forth the patient’s complaints, the findings of your examination, a
resume of treatment administered or recommended, the present condition of this
individual and, if you are able to provide same at this time, your prognosis
for the future. I would particularly ask that you address whether my client as
a result of the injuries, is now at any greater risk for the onset of a medical
condition at some time in the future. As well, would you please describe any
recreational or occupational restrictions, which may now be imposed upon him as
a result of any sequelae remaining from the injuries sustained.”

[52]        
Dr. Schmidt summarizes this in the first paragraph of his June 15, 2011
report, where he states:

…The purpose of the evaluation
was to determine Mr. Hampton’s current psychological and neuropsychological
status with particular reference to the impact, if any, of his pedestrian/motor
vehicle accident of 14 February 2009.

[53]        
On page 9 of 32, Dr. Schmidt writes:

Within the field there is a good
deal of debate as to the extent to which persisting symptoms in mild traumatic
brain injury (MTBI) are due to the actual brain injury versus other factors
such as pain, emotional disruption and purposeful fabrication or exaggeration
of symptoms. These factors can of course co-exist and interact to create such
symptoms, and the contribution of each of these factors will vary from
individual to individual.

[54]        
In Dr. Schmidt’s report at pages 18-19 of 32, he confirms that he
reviewed the report of Dr. Hershler dated November 14, 2011. As part of his
review, Dr. Schmidt writes:

Dr. Hershler went on to note that
there was “no evidence of any neurological injury” although I was not
sure whether he was referring to brain injury or injury to the peripheral
nervous system in conjunction with his leg injury and other problems. In any
case, he ultimately concluded that the accident in question was “the cause
of the fractures of the distal tibia and fibula in the right leg and indirectly
to the muscular pains that he experiences in his back and chest wall…Dr. Hershler
made no mention of any traumatic brain injury in the accident.

[55]        
On page 22 of 32, Dr. Schmidt details emotional changes and cognitive
changes, including the plaintiff experiencing some problems with remembering
numbers. On page 24 of 32, he comments on a collateral interview with Daniel
Hampton and wrote:

…Mr. Hampton felt that his son
was still “a [little] bit different but I don’t know if that’s just aging,
maturing.” He went on to say that his son does complain of chest pain if he
coughs and he will also get headaches which lead to nose bleeds.

[56]        
Dr. Schmidt comments on Mr. Hampton’s comment in the diagnosis portion
of his November 14, 2011 medical-legal opinion which states “There is no
evidence of any neurological injury.”

[57]        
It does not appear that Dr. Hershler reviewed Dr. Schmidt’s report. Dr.
Schmidt’s report dated June 15, 2011 predated all of Dr. Hershler’s reports,
but there is no mention in the materials of Dr. Schmidt’s report being
forwarded to Dr. Hershler. Mr. Zak’s letter of May 27, 2011 references several
medical reports, clinical records and hospital records, but does not reference
Dr. Schmidt’s report.

[58]        
It is apparent from Dr. Schmidt’s report that the issue of what Daniel
Hampton refers to as “headaches which lead to nose bleeds” was an issue
experienced by the plaintiff by June of 2011.

[59]        
Although I have disallowed a substantial portion of the charges
associated with a visit by the plaintiff to Dr. Hershler on January 14, 2014,
the issue of headaches associated with nose bleeds was mentioned at that
interview. As noted, that issue had been a symptom suffered by the plaintiff
for well over two years.

[60]        
Mr. Zak would have reviewed the addendum where Dr. Hershler writes:

I cannot explain the headaches
mentioned today by Mr. Hampton, and would defer to a specialist with regard to
diagnosis and management.

[61]        
That comment would have also reminded Mr. Zak of the headache complaints
and reinforced what Mr. Zak has deposed to in his affidavit, namely in
paragraphs 40 and 41:

40.       Dr. Schmidt would not have been able to medically
address the plaintiff’s headache disorder. Dr. Schmidt is not a neurologist and
thus providing an opinion about the onset or duration of a headache disorder
would have been outside his expertise.

41.       I believed it was
necessary for the plaintiff to be evaluated by a neurologist to address his
headache complaints. I chose Dr. Cameron who also has a well established
reputation and who has been qualified to give expert opinion evidence in the
Supreme Court of British Columbia.

[62]        
The question then, is “was it proper for the plaintiff to undergo an
examination by a neurologist in early 2014?” Mr. Justice B.D. MacKenzie, in Salsman
v. Planes, 2014 BCSC 1726, at para. 50, writes:

[50]      Moreover, the defendant submits the Registrar was
at liberty not to accept trial counsel’s evidence of necessity and refers to
the statement of Legg J. in Bell at para. 24, where he states:

[24] The Registrar is not bound to accept an affidavit of
counsel that in counsel’s opinion the employment of the expert or the incurring
of the expense was justified or that it was necessary for the attainment of
justice when the Registrar is considering allowing or disallowing the
disbursement under this rule. He should give careful consideration to any such
affidavit and he must weigh what is deposed to against any affidavit that
deposes to the opposite effect. His duty under the rule is to determine whether
the expense is a reasonable and justifiable expense which should be borne by
the unsuccessful litigant. [emphasis in original]

[63]        
I also consider the facts here, which, briefly put, were that the
plaintiff, a pedestrian, was run down by a vehicle driven by Ryan Osachoff. The
plaintiff had some memory problems surrounding what happened right at the time
of the accident, and was suffering headaches of a kind which were not present
prior to the accident. None of the medical professionals who had examined the
plaintiff had ruled out the possibility of a head injury; the comments about
“no neurological injury” appear to me to have been directed to the peripheral
nervous system in conjunction with leg injury and other problems. A mild traumatic
brain injury can be quite serious.

[64]        
Fortunately, Dr. Cameron ruled that out. He gave the opinion that Mr.
Hampton’s intermittent headaches:

…are probably musculoskeletal
headaches secondary to the soft tissue and musculoskeletal injuries of his neck
that he sustained at the time of this accident.

[65]        
That report undoubtedly assisted in settling the claim. From the
plaintiff’s perspective, it would give the plaintiff comfort knowing that his
headaches were not as a consequence of some brain injury. From the
defendants/third party’s perspective, ruling out such a brain injury would have
assisted them in determining an appropriate quantum for settlement.

[66]        
In the circumstances of this case, keeping in mind what Mr. Zak knew in
early 2014, when he sought Dr. Cameron’s opinion, I am of the view that the
disbursements were proper and are allowed as claimed.

Associated Economic Consultant Ltd.’s Report dated May 28, 2014

[67]        
In her submissions, counsel for the defendants/third party submits:

…the report of May 28, 2014 is extravagant. It is a one page
report attaching a schedule that had previously been provided to counsel for
the Plaintiff by email dated March 21, 2014. The Defendants note that
Associated Economics charged $1,925.00 and $1,085.00 for reports provided in
March 2014.

The Defendants submit that the
breakdown of the charges provided by Associated Economics does not explain why
it would cost $685.00 to turn an email into a letter.

[68]        
References were made to the second affidavit of Lola Mondin made
September 15, 2014, referred to in para. 3 above. That report attaches the
one-page report, an invoice, an email dated September 12, 2014 and a
justification letter written by Sergiy Pivnenko of Associated Economic
Consultants Ltd.

[69]        
The breakdown of the impugned invoice sets out a half an hour telephone
conference between one of the economists, Robert Carson, and Mr. Zak, a half
hour by another economist to “draft a letter on [customs] data from Statistics
Canada’s National Household Survey (“NHS”), a further half hour telephone
conference between Mr. Pivnenko and Mr. Zak and 1.5 hours charged by Mr.
Pivnenko to prepare the letter.

[70]        
The email states in part:

Please note that in addition to our Earnings Information
letter dated May 28, 2014 you have requested an additional letter explaining
specifications of our custom NHS-based data.

On May 30 John Struthers prepared
such letter (0.5 hours billed) for my signature, including the attachments with
his correspondence with Statistics Canada regarding our data purchase. This
letter was not sent out since you informed us about the settlement.

[71]        
The May 28, 2014 letter states:

…I am providing you with the
table of 2011 National Household Survey (NHS) earning statistics for Alberta
and B.C. males working as Industrial electricians. Note that
statistics shown in the table are from custom tabulations based on 2011 NHS
purchased by Associated Economic Consultants Ltd. from Statistics Canada.

[72]        
The table shows earnings for totals and then two age groups with two
differing levels of education and then sets out the average full time, full
year employment incomes for males in those age categories for British Columbia
and Alberta.

[73]        
Had the matter proceeded to trial, this sort of earnings evidence would
have assisted the judge in determining economic loss claims, both past and
prospective.

[74]        
It is apparent from Mr. Pivnenko’s email that the time expended here was
not merely for “turning an email into a letter.” It would appear that the
obtaining of the table was included in the 1.5 hours charged by Mr. Pivnenko in
preparing the letter, summarizing pay stubs and doing earnings calculations.
Two one-half hour sessions on the telephone with plaintiff’s counsel are
reasonable. The drafting of a letter on the customs NHS-based data was done,
although the letter was not produced.

[75]        
This sort of evidence is proper and the amount billed, based on hourly
rates of the economists and others working for Associated Economic Consultants
Ltd., is reasonable. The account is allowed as presented at $685.00.

Cedar River Physiotherapy & Rehabilitation Centre

[76]        
On February 28, 2014, Mr. Zak sent a letter to Ms. Ginter attaching a
physiotherapy assessment report prepared by Cedar River Physiotherapy &
Rehabilitation Centre. The report sets out a history and documents pain being
reported by the plaintiff in his chest, right shoulder, both knees, both hips,
both elbows, left hand, right hand, mid-thoracic spine, and other symptoms.
There is a physical assessment summary setting out the findings. There is a
chart entitled “Outcome Measures”, which appears to give an opinion as to the
disability in three areas. Under “General Comments”, the report states:

…These observations were based on
test measurements, observed changes in posture, observed skin blanching, muscle
tremor, and appropriate changes in heart rate.

[77]        
The document then goes on to provide some recommendations, essentially a
comprehensive physiotherapy report, including six specific aspects.

[78]        
The report does not comply with the prerequisite set out in the Supreme
Court Civil Rules, B.C. Reg. 168/2009 [Civil Rules], in particular
certification required in Rule 11-2(2). It is in the nature of clinical records
as opposed to an expert report to be tendered as evidence pursuant to Rule
11-6.

[79]        
In submissions, counsel for the defendants/third party writes:

The Defendants respectfully
submit that this report was an assessment for treatment, and is not a necessary
or proper disbursement. This expense is more properly classified as a special
damage. The report was not served as an expert report and the Defendants
respectfully submit that the report would not have been admitted as expert
evidence.

[80]        
While the report would not have been admitted as expert evidence, it might
have been admitted in part as a clinical record setting out observed facts, had
the author testified. The cost of the report is not properly characterized as a
special damage; the cost of the recommended physiotherapy, including the cost
of the registered massage therapy, would have been items of special damage. The
account was for $525.00. That is substantially more than any of the medical
records accounts set out in the bill of costs. Some of the report offers an
opinion without the prerequisites for admissibility as opinion evidence.

[81]        
The obtaining of this document was proper in the circumstances of this
case, but the entire cost of it is an extravagance. I allow two-thirds of the
account or $350.00, and reduce it by $175.00.

Other Disbursements

[82]        
The defendants take issue with the amount charged for photocopies, faxes
and taxi fares. By agreement, the plaintiff agreed not to make a claim for taxi
fares. By agreement, the parties agreed that faxes would be allowed at $300.00.

[83]        
The defendants submit that $2,500.00 will be a reasonable amount for
photocopies on a “rough and ready” approach. Past decisions have reduced the
amount for photocopies when the photocopy charges include charges for what
would normally be categorized as overhead, or as is referred to in Lola
Mondin’s affidavit #1 “correspondence and documents produced in-office.” In
that same affidavit, at paragraph 17, Lola Mondin deposes:

…I have reviewed the materials
generated in this claim and would estimate that 85% of the expense claimed in
the Bill of Costs relates to photocopying.

[84]        
Counsel for the defendants/third party submits that $2,500.00 would be a
reasonable amount for photocopies and .50 cents (instead of $1.00 charged) for
colour photocopies.

[85]        
I agree; $2,500.00 is approximately 75 percent, which is consistent with
other assessments I have done.

[86]        
I allow photocopies at $2,500.00.

[87]        
Paragraph 18 of Lola Mondin’s affidavit #1 deposes to 62 coloured
copies, which at .50 cents per copy are allowed at $31.00, a reduction of
$22.50.

Interest

[88]        
The Court of Appeal in MacKenzie v. Rogalasky, 2014 BCCA 446, has
confirmed that an out-of-pocket interest expense incurred to finance
disbursements is not a recoverable disbursement under Rule 14-1(5).

SUMMARY

a)    102.5 units are
allowed, which is calculated at para. 23 above for a total of $12,628.00,
inclusive of taxes;

b)    The third
medical-legal report of Dr. Hershler is allowed at $800.00, plus applicable
taxes, a reduction of $1,600.00. Client travel and airfare charges are
disallowed in their entirety, together with the associated GST on those
charges;

c)     Dr. Donald
Cameron’s account in the amount of $3,945.92 is allowed in its entirety, as are
the associated costs for client travel, airfare and GST;

d)    The Associated
Economic Consultants Ltd. account in the amount of $685.00 is allowed in its
entirety;

e)    The Cedar River
Physiotherapy & Rehabilitation Centre’s account of $525.00 is allowed at
$350.00, a reduction of $175.00;

f)      Photocopies
are allowed at $2,500.00, a reduction of $812.00;

g)    In-house
coloured photocopies are allowed at $31.00, a reduction of $22.50;

h)    Faxes are
allowed at $300.00 by agreement, a reduction of $58.00;

i)       Taxi
fares to and from the courthouse are not allowed, a reduction of $71.88;

j)      Interest
claimed in the amount of $5,249.22, an amount amended from $5,816.48 is not
allowed;

k)    
The corrections conceded by the plaintiff in submissions and in the
first affidavit of Lola Mondin further reduce the amount claimed.

[89]        
This assessment took one-half day. I was advised that there was an offer
to settle costs made by the defendants/third party.

[90]        
At the time of the assessment, the law with respect to interest on
disbursements was as set out by the Supreme Court in what is commonly referred
to as the “Chandi” decision: Chandi (Guardian ad litem) v. Atwell,
2013 BCSC 830. Between the date of submissions and the date of this decision, Chandi
and its associated case, MacKenzie were overturned by the Court of
Appeal as noted. Given those circumstances, if the parties are unable to reach
an agreement on the costs of this assessment, they have liberty to come before
me.

[91]        
If issues can be finalized, then the parties should present to me a bill
of costs setting out the determinations I have made with appropriate
calculations, including taxes, and I will sign a certificate confirming the
assessment.

“Master
R.W. McDiarmid”

MASTER McDIARMID