IN THE SUPREME COURT
OF BRITISH COLUMBIA
Citation: | Wall v. Kexiong, |
| 2015 BCSC 1174 |
Date: 20150610
Docket: M122410
Registry: Vancouver
Between:
Sarah Wall
Plaintiff
And
Xie Kexiong
Defendant
Before: Master Muir
Oral Reasons for
Judgment
In Chambers
Counsel for | I. Gill, Articled Student |
Counsel for | R. Pearce |
Place and | Vancouver, B.C. June 10, 2015 |
Place and | Vancouver, B.C. June 10, 2015 |
[1]
THE COURT: This is an application by the
defendant to adjourn the trial of this matter to a date convenient to counsel.
[2]
The facts are
basically that the plaintiff has been involved in three motor vehicle
accidents, being Vancouver registry actions M136642, M136643 and M122410 that
have, by consent order, been ordered to be heard at the same time.
[3]
On June 24,
2014, the plaintiff was involved in a fourth accident. She has not commenced an
action for the fourth accident. The fourth accident is apparently one in which
liability is likely to be contested. The defendant in the current action argues
that the fourth accident is unlikely to be resolved via settlement and that the
plaintiff will undoubtedly be required to bring an action with respect to that
accident.
[4]
The defendant also
points out that the expert reports provided in this matter already opine based
on all four accidents. For example, the past and future income losses are
calculated using all four accidents. The general practitioner discusses the
fourth accident as resulting in injuries to the neck, back and shoulders of the
plaintiff. The defendant argues that these injuries are indivisible in that
they were an aggravation of prior injuries.
[5]
The defendant
relies on the Court of Appeal decision in Garcia v. Drinnan, 2013 BCCA
53, which discusses the problems of separate trials in cases of indivisible
injuries and the potential for overlapping or inconsistent treatments of the
same facts, overlapping forms of proof, and the court quotes from the judge
below:
[15] The issue of the extent of
the indivisible injuries, as well as the assessment of the damages suffered as
a result of them are issues that must be answered in both actions, as will be
the issue of whether the plaintiff has appropriately mitigated his damages. On
the face of it, it is possible for the finder of fact in each case to come to a
different conclusion on those issues. That may well be embarrassing to the
administration of justice.
[6]
I do not disagree with the defendants view of the issues where there
are indivisible injuries. It is common that sequential accidents that result in
indivisible injuries are tried together for precisely the reasons advanced by
the defendant.
[7]
The concern that I have here is that, with respect to the fourth
accident, there has been no action commenced, and although the defendant urges
on me that it is almost a certitude that the fourth accident will result in an
action, that remains still, in my view, a matter of some speculation.
[8]
The plaintiff advances significant prejudice if there is a delay in this
matter. Hence, counsel says that if there is an adjournment, she should have a
significant advance in the amount of approximately $80,000 to allow her to deal
with the financial impact that these matters have had on her, and points out
that the first accident occurred in May of 2010, five years ago.
[9]
In all of the circumstances, as I said, although I would
generally in circumstances of indivisible injury grant the order sought by the
defendant, given the prejudice to the plaintiff and in the circumstances that
the fourth action has not been commenced, I find that it would be
inappropriate to grant the order sought, and I decline to do so.
[10]
Costs, in my view, would go to the plaintiff in the cause. If there is
any problem with that, I will hear you.
[11]
MR. PEARCE: Your Honour, I would ask for costs not to be awarded
at all in this instance, because my friend has advanced an argument for an
advanced payment that was – you havent ruled on that, but in my opinion would
have been wholly unsuccessful. It was not set out in the order sought, although
extensive – my friend referred to it extensively and gave evidence to that, and
the fact that the evidence was inadequate to award such an order. I would
say that, in all likelihood, there would have been mixed results here and
therefore no costs should be awarded.
[12]
THE COURT: Mr. Gill.
[13]
MR. GILL: Your Honour, plaintiff seeks costs here because, Your Honour,
she is already immensely unstable. She is going through huge turmoil, and shes
seeking costs of this application.
[14]
THE COURT: I think that the plaintiff was substantially successful
in defeating the primary application and, in the circumstances, should have her
costs in accordance with the Rules. She will have her costs in the cause.
Thank you.
Master Muir