IN THE SUPREME COURT
OF BRITISH COLUMBIA
Citation: | Ekman v. Cook, |
| 2015 BCSC 1863 |
Date: 20150903
Docket: M115107
Registry: Vancouver
Between:
Roger Ekman
Plaintiff
And
Lynn Marie Cook and William Joseph
Cook
Defendants
Before: The Honourable Mr. Justice
Weatherill
Oral Reasons for
Judgment
Re Costs
In Chambers
Counsel for | K.F. Gourlay S. Mansfield, Articled Student |
Counsel for | J.W. Joudrey |
Place and | Vancouver, B.C. September 3, 2015 |
Place and | Vancouver, B.C. September 3, 2015 |
[1]
THE COURT: This personal injury claim proceeded
to trial on October 15 to October 17, 2013 inclusive on the issue of liability
only. I issued my reasons for judgment on November 7, 2013 (2013 BCSC 2027).
I found that the plaintiff was 75 percent liable and the defendants 25 percent
liable for the plaintiffs injuries.
[2]
The parties
settled all issues of quantum on July 8, 2015, which resulted in the plaintiff
receiving a total of approximately $135,000 plus his taxable costs and
disbursements, whatever they are determined to be. The settlement equates to a
total damage award of approximately $540,000.
[3]
I am advised that
the defendant, Lynn Marie Cook commenced a separate proceeding against the
plaintiff arising out of this accident. That action was agreed by the parties
to be tried separately. I understand that it was later settled.
[4]
The issue left to
be decided here is, given the apportionment of liability found at trial, whether
the plaintiff is only entitled to 25 percent of his taxable costs and
disbursements in accordance with what is called the usual rule, or whether
the court should exercise its discretion to award him a higher percentage.
[5]
The injuries
claimed by the plaintiff were serious. They included:
a)
a traumatic brain injury;
b)
facial injuries, including fractures through the lateral right maxillary
sinus and avulsion fracture of the right lateral pterygoid plate;
c)
fractures through the right mandible ramus, coronoid process in the left
anterior mandibular body;
d)
multiple pelvic injuries, including fractures of the left superior and
inferior pubic rami; fractures of both iliac bones; a ligamentous injury to the
left sacroiliac joint; and a transverse fracture through the sacrum at the
level of S3;
e)
a non-displaced fracture through the tip of his left fifth lumbar
transverse process;
f)
injuries to the left hand, including a dislocation of the
interphalangeal joint of the thumb and a laceration of the left palm;
g)
an injury to the medial collateral ligament of the left knee, and;
h)
multiple abrasions.
[6]
The plaintiff was
in hospital for five weeks after the accident. He was off work for almost one
year. He continues to suffer residually from his injuries.
[7]
Section 3(1) of
the Negligence Act, R.S.B.C. 1996, c. 333, sets out what is often
referred to as the usual rule. It provides as follows:
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.
[8]
It is clear that s. 3(1) of the Negligence Act confers a broad
discretion on the trial judge: Sayers v. Fediuk, 77 B.C.L.R. (2d) 117
(S.C.). The principal consideration for the court is whether an injustice will
result if the usual rule is followed: Forsyth v. Sikorsky Aircraft Corp.,
2002 BCCA 231 at para. 41; Wong-Lai v. Ong, 2012 BCSC 1569.
[9]
The authorities demonstrate that there are many factors the court
considers in exercising its discretion under s. 3(1) of the Negligence Act.
The following is a non-exhaustive list of these factors:
a)
the seriousness of the plaintiffs injuries;
b)
the difficulties facing the plaintiff in establishing liability;
c)
whether the offers of settlement, if any, were substantially below the
amount ultimately received;
d)
whether the plaintiff was forced to go to trial to obtain recovery;
e)
the difficulty and length of the trial;
f)
whether the costs recovery available to the plaintiff if costs are
apportioned accordingly to liability will bear a reasonable relationship to the
partys costs in obtaining the results achieved;
g)
the position taken at trial by the parties, in particular whether they
were appropriate and reasonable in the circumstances;
h)
whether the defendants made any settlement offers;
i)
the ultimate result at trial; and
j)
whether the plaintiff achieved substantial success that would be
effectively defeated if costs were awarded according to the usual rule.
See Moses v. Kim, 2009 BCCA
82 at para. 73; Forsyth at para. 40; and Tenhunen v. Tenhunen,
2015 BCSC 955.
[10]
Here, the plaintiff clearly suffered very serious injuries in the
accident. His injuries were such that he had no recollection of what had
happened. He was ticketed by the police for passing on the left. He
recognized from the outset that his portion of blameworthiness for his injuries
would be significant. His claim was risky. However, as proved to be the case,
his claim was not without some merit.
[11]
He initially offered to settle on the basis of a 50-50 liability split,
and later on the basis of a 40-60 liability split in favour of the defendant,
with costs to be paid pursuant to the Negligence Act and the Supreme
Court Civil Rules.
[12]
He provided copies of witness statements to the defendants which, if
accepted at trial, clearly provided evidence of contributory negligence on the
part of the defendants. The evidence of those witnesses was accepted in large
part at trial.
[13]
The defendants steadfastly took the position, from the outset and
throughout the trial, that the plaintiff was 100 percent liable for the
collision and his resulting injuries. They made no settlement offer, other
than to offer approximately one year prior to the trial to waive their costs.
That offer lapsed two weeks later.
[14]
The defendants maintained a hard-line position of outright denial of any
liability. There was no concession of any possible finding of liability
against them. The plaintiff had no alternative but to proceed to trial.
Otherwise, it is clear that he would have received nothing.
[15]
The liability trial was conducted efficiently; it took only three days.
The result at trial was substantially closer to the plaintiffs offer to accept
60 percent of the liability than to the defendants position that he was 100
percent liable.
[16]
The plaintiffs bill of costs has been presented at $16,878.40 for costs
and $38,242.85 for disbursements, for a total of $55,121.25. Apportionment,
according to the usual rule, would result in a costs recovery of $13,780.33,
far less than his disbursements alone.
[17]
Counsel for the defendants submits that, for the courts discretion
under s. 3 of the Negligence Act to be exercised in favour of departing
from the usual rule, there must be something exceptional or some extraordinary
feature about the case.
[18]
He relies on Forsyth, which involved complex mechanical
engineering issues, as well as Karran v. Anderson, 2009 BCSC 1704,
where, like here, the defendant contested liability throughout not one, but two
trials, and where, like here, the plaintiffs draft bill of costs was
approximately $50,000. Yet there, the court was not persuaded that the
discretion should be exercised in favour of departing from the usual rule.
[19]
I note that the situation in Karran was such that the decision on
costs occurred before a determination on the quantum and that it was not known
whether the plaintiffs costs and disbursements on quantum were or would have
been treated in a similar fashion.
[20]
Counsel for the defendant also relies heavily on the decision of this
court in Rimmer (Guardian Ad Litem of) v. Langley (Township), 2007 BCSC
340, which is a case with remarkably similar facts to the case at bar. There,
the plaintiff suffered a severe brain injury. The defendant denied any
liability and made no offer to settle. The case was complex. There was a 14
day trial on liability. Justice Scarth held that the court should not exercise
its discretion in favour of a variation of the usual rule merely because the
plaintiff had to go to court to get a remedy.
[21]
Justice Scarth relied on the decision of this court in Wells
(Guardian ad litem of) v. McBrine (1986), 70 B.C.L.R. 34 (S.C.), for the
proposition that the court should be careful not to penalize a defendant for
exercising his or her legitimate right of requiring a plaintiff to prove his or
her case and presenting a full defence.
[22]
I agree that there is nothing inherently improper about a defendant
requiring a plaintiff to prove his or her case where there is a legitimate
issue to be tried. However, where the plaintiff proceeds to trial and does
just that, proves his or her case, there is, subject to the Supreme Court
Civil Rules and, in this case, s. 3 of the Negligence Act,
also nothing inherently improper about awarding the plaintiff his or her costs
for having to do so. Such an award is not penalizing a defendant for
exercising his or her right to require the plaintiff to prove his or her case;
rather, it is the expected consequence of the exercise of that right.
[23]
Moreover, I agree with counsel for the plaintiff that the development of
the law in this Province in respect of the discretion available to a trial
judge under s. 3 of the Negligence Act since 1986, when Wells was
decided, is such that the statement in that case to the effect that merely
because a plaintiff had to go to court to get a remedy is insufficient reason
to vary the normal rule no longer represents the law.
[24]
In my view, the question of proportionality is an additional factor that
must be considered when determining whether to exercise the courts discretion
under s. 3 of the Negligence Act. The Supreme Court Civil Rules
make it clear that securing the just, speedy and inexpensive determination of a
proceeding on its merits includes, so far as practicable, conducting the
proceeding in ways that are proportionate to the amount involved, the
importance of the issues in dispute, and the complexity of the proceeding.
[25]
A plaintiff who successfully proceeds to trial in the face of the
defendants right to require him to prove his or her case, but recovers an
amount that did not warrant the time, effort and expense, can expect the court
to be less willing to exercise its discretion under s. 3 of the Negligence
Act in his or her favour than a plaintiff whose ultimately recovery is
substantial.
[26]
In this case, there was never an issue that the plaintiff would be found
to have been contributorily negligent. Indeed, prior to trial, he was prepared
to accept 60 percent of liability. However, the defendants forced him to trial
to demonstrate that he was less than 100 percent liable. The plaintiff succeeded.
[27]
I do not agree that the courts discretion under s. 3 of the Negligence
Act is only exercised in exceptional circumstances; rather, it depends on
the facts of each case.
[28]
In my view, an award to the plaintiff of only 25 percent of his taxable
costs and disbursements in this case will result in an injustice. The
defendants forced the plaintiff to trial and to have to incur 100 percent of
those costs and disbursements in order to obtain any relief whatsoever.
[29]
An award of only 25 percent of the plaintiffs costs when 100 percent of
his costs were required to be incurred to achieve the result that he did would
have a profound effect on his overall recovery. In my view, it is appropriate
that the defendants be liable to pay those costs.
[30]
Here, the plaintiff achieved substantial success, that, as I have said,
would be defeated if costs were awarded in accordance with the usual rule.
[31]
Accordingly, I am exercising my discretion in favour of the plaintiff,
and I am awarding him 100 percent of his taxable costs and disbursements in
this matter.
[32]
Had the plaintiff taken the position that he was not contributorily
negligent to a significant degree, or had the defendants conceded the possibility
of some negligence on their part, it is possible that I would have exercised my
discretion in a different fashion. The plaintiff is entitled to his costs of
this application.
[33]
I do want to thank both counsel for their very thorough and helpful submissions.
G.C. Weatherill J.