Thompson v. Lowey,


2016 BCSC 659

Date: 20160414

Docket: 037443



Bonnie Athlyn



Rochelle J. Lowey
and James I. Martin



Master S. Wilson (as Registrar)


Reasons for Decision

Counsel for the Plaintiff:

T.A. Duerr

Counsel for the Defendants:

R. Goldstone

Place and Date of Hearing:

Penticton, B.C.

April 7, 2016

Place and Date of Judgment:

Kelowna, B.C.

April 14, 2016


This is an assessment of the Plaintiff’s bill of costs in a personal
injury action that was settled at a mediation some three and a half months
before the trial. The trial had been scheduled for nine days with a jury.

Prior to the hearing of this appointment, the parties were able to agree
on all of the tariff items and all but two of the disbursements. The hearing
before me was thus limited to consideration of whether the plaintiff should
recover from the defendants the cost of two expert reports, namely:

a)    the report of
the plaintiff’s general practitioner, Dr. Margaret Myslek, dated December
1, 2014, at a cost of $1,103; and

b)    a vocational
assessment conducted by Derek Nordin, dated February 10, 2016, which cost

By way of background, the plaintiff was 61 years old when the vehicle in
which she was a passenger was struck from behind. The plaintiff’s husband was
also in the vehicle. At the time of the accident, the plaintiff’s primary
source of income was as a foster parent but she subsequently stopped this work
for reasons that were unrelated to this claim. She and her husband then decided
to try to make a living in the trucking business but this venture failed, as
did, unfortunately, the parties’ marriage. At the present time, the plaintiff
is earning some income helping an elderly person.

The plaintiff’s claim is that she suffered from a permanent partial
hearing loss, musculoskeletal injuries as a result of whiplash, and emotional

The plaintiff obtained expert reports from her general practitioner, Dr. Myslek,
a physiatrist, Dr. Gross, an otolaryngologist, a functional capacity
evaluation and a vocational assessment.

The parties do not disagree on the legal principles that govern the
assessment of disbursements which were stated by Master MacNaughton in Turner
v. Whittaker
, 2013 BCSC 712, at paragraph 5:

[5]        Counsel were also able to agree on the following
legal principles which are applicable on an assessment of disbursements:

            1.   Rule
14-1(5) requires an assessing officer to determine which disbursements were
necessarily or properly incurred in the conduct of a proceeding and to allow a
reasonable amount for those disbursements.

            2.   The
consideration of whether a disbursement was necessarily or properly incurred is
case-and circumstance-specific and must take into account proportionality under
Rule 1-3. (Fairchild v. British Columbia (Vancouver Coastal Health
, 2012 BCSC 1207).

            3.   The
time for assessing whether a disbursement was necessarily or properly incurred
is when the disbursement was incurred not with the benefit of hindsight. (Van
Dael v. Van Dael
, 56 B.C.L.R. 176 (SC) rev’d 56 B.C.L.R. 178 at para. 4

            4.   A
necessary disbursement is one which is essential to conduct litigation; a
proper one is one which is not necessary but is reasonably incurred for the
purposes of the proceeding. (McKenzie v. Darke, 2003 BCSC 138, para. 17-18)

            5.   The role of an
assessing officer is not to second guess a competent counsel doing a competent
job solely because other counsel might have handled the matter differently. (McKenzie
v. Darke
, 2003 BCSC 138, para. 21)

I will consider each of the two disputed disbursements.

General Practitioner’s Report – Dr. Myslek

Dr. Myslek had been the plaintiff’s family physician since 2008, so
since some three years prior to the subject accident. The report was requested
on August 13, 2014, but was not actually received until December 1, 2014 (the
“Myslek Report”).

Mr. Duerr on behalf of the plaintiff says that the Myslek Report
was not only a proper one that was reasonably incurred but was in fact a
necessary one in the circumstances of this case. He says that causation was in
issue even though liability had been admitted and that Dr. Myslek was the
only potential source of expert evidence on the plaintiff’s condition both before
and after the accident.

He also says that a failure to tender any evidence from a treating
physician, especially in circumstances whereby the treating physician had seen
the plaintiff prior to the accident, is a situation whereby a trier of fact may
draw an adverse inference from the failure to do so, and Mr. Duerr refers
me to Pearlman J.’s decision in Andrews v. Mainster, 2014 BCSC 541, as
an example of when an adverse inference may be requested by a defendant.

The defendants say that the Myslek Report was unnecessary because it
adds nothing to the report of the physiatrist, Dr. Gross, which report is
dated around the time of the Myslek Report. I was referred to two cases, Arnason
v. Nerio
, 2014 BCSC 185, and Jung v. Sommerfeld et al, (24 February 2015),
Kelowna 89383 (BCSC), as examples of cases whereby the reports of general
practitioners were not allowed on assessment.

For the reasons that follow, I find that Dr. Myslek’s report was
necessarily or properly incurred in the circumstances of this case.

A personal injury case in which a defendant has put in issue whether or
not the plaintiff’s symptoms were caused by the motor vehicle accident will
necessarily involve some consideration of the plaintiff’s condition prior to
the accident.

In addition to having been so advised by counsel, I have reviewed the
defendants’ response to civil claim, which confirms that causation was in issue.
I note that the defendants plead that the plaintiff suffered from both
pre-existing injuries and subsequent injuries, and that the injuries that were
the subject of the plaintiff’s claim were attributable to those prior and
subsequent injuries and conditions rather than the accident. I note further
that the defendants in paragraphs 4(a) and (b) of the response to civil claim
allege that the plaintiff did not seek medical attention and did not follow
medical advice.

Dr. Gross was retained by the plaintiff’s counsel for the purposes
of providing an expert report in this litigation, but he was not a treating
doctor and his examination occurred on a single day some three years
post-accident. It is clear that Dr. Gross reviewed the clinical records of
other doctors in the preparation of his report, including those of Dr. Myslek.

In Arnason, Master Young, as she then was, sitting as registrar,
refused to allow the cost of the general practitioner’s report in a case where
there were also reports from a physiatrist and from a consultant in pain
medicine. Master Young disallowed the general practitioner’s report but allowed
the other two reports. In this case, the defendants say that the principle is
the same if the general practitioner’s report adds nothing to the specialist’s
report, and if the specialist has access to the general practitioner’s file,
the general practitioner’s report is not required.

Mr. Duerr concedes some overlap but says that a general
practitioner’s report covers matters not addressed by the specialist. He says
that in Arnason, Master Young allowed two of the three reports for which
there was overlap and simply disallowed the less expensive one and that Master
Young was likely more concerned about “piling on” wherein the general
practitioner’s report would serve no purpose to bolster the other two reports.

Mr. Duerr also says that the plaintiff is not in a position to file
the general practitioner’s clinical records at trial, a point not disputed by Mr. Goldstone
on behalf of the defendant.

I am not in a position to determine from a review of the reasons in Arnason
as to whether any of the medical practitioners other than the general
practitioner were involved as treating doctors. However, it is, in my view, reasonable
for a plaintiff to obtain a report from a treating physician whose care
predates the subject accident when the issue of causation, including but
presumably not limited to the possibility of both prior and subsequent
accidents, has been put in issue by the defendant.

Following completion of the hearing, the plaintiff filed with the court
and with the agreement of Mr. Goldstone the reasons from another costs
assessment hearing, Kruger v. Rezansoff, March 12, 2015,
PentictonNo.36015, a decision of Master Young, as she then was. Counsel had
referred to the fact that he had ordered the reasons but had not received them
at the time of the hearing. However, I do not find this case to be helpful here
because the issue in Kruger as it related to a general practitioner’s
report was whether a second report should be allowed,  the first having already
been agreed to the defendant, and where the primary argument against allowing
the report was that the report was in the nature of argument rather than expert
opinion. Since I did not find the case to be helpful, I did not see any need to
invite Mr. Goldstone to address it.

I find myself in agreement with the plaintiff’s submissions about the
possibility of an adverse inference being drawn if the plaintiff had no
evidence from her treating doctor. In his analysis in Andrews v. Mainster,
Pearlman J. in paragraphs 174 to 180 reviewed the law with regard to drawing an
adverse inference from a failure on the part of a plaintiff to call treating
doctors before finding on the facts of that case that an adverse inference was

Counsel for the defendants argued that the plaintiff in this case would
have a strong argument to distinguish the Andrews v. Mainster case and
referred me to the findings of Pearlman J. as to that plaintiff’s unreliable
history of largely subjective complaints. The defendants argue that it would be
unreasonable for a defendant to argue that an adverse inference be drawn where
all of the clinical records had been made available as they had been here.

This argument conflates the issue of whether a trial judge hearing this
plaintiff’s case could have drawn an adverse inference, which is a hypothetical
question given the settlement prior to trial, with the question of whether or
not it was necessary or reasonable for the plaintiff to order a report from her
general practitioner in August 2014. The latter question is the only one I must
answer in this case.

I note that in Andrews, Pearlman J. concluded that an adverse
inference was appropriate even though at least some of the treating doctors’
clinical records had been produced.

As plaintiff’s counsel points out, the defendants could have instructed their
counsel to argue that an adverse inference should be drawn right until the eve
of the trial. The potential risk that the defendants could argue that an
adverse inference should be drawn as a result of the plaintiff’s failing to
tender evidence from at least one treating practitioner is a legitimate concern
for plaintiff’s counsel in the prosecution of the case.

In summary, even though I agree that there is overlap with Dr. Gross’
report, I find that the plaintiff’s decision to obtain a report from the plaintiff’s
general practitioner to have been necessarily or properly incurred.

Derek Nordin Report – Vocational Assessment

Although the plaintiff is now 66 years of age, her financial
circumstances are such that she intends to continue to work.

An assessment of the plaintiff’s physical abilities was undertaken and addressed
in detail in the functional capacity evaluation report of Ms. Drummond, a
disbursement that the defendants do not dispute. The plaintiff says that the
purpose of the vocational assessment is to help the court with an assessment of
how the plaintiff’s physical limitations impact upon her ability to earn an

The defendants say that all the information that the court needed with
regard to the plaintiff can be found in the functional capacity evaluation,
such that the vocational assessment was unnecessary. The defendants’ focus in
this regard is that the plaintiff was employed as a foster parent at the time
of the accident and being foster parent still represents her most likely form
of employment, and therefore an analysis of other employment is of no
assistance. I was referred to the portion of the functional capacity report
that identifies three levels of foster care which depend upon the needs of the
child before concluding that the plaintiff could only care for children at the
lowest of the three classifications.

The defendants also say that as a matter of common sense it was unlikely
that the plaintiff was going to be finding work outside the home due primarily
to her age, and since the functional capacity evaluation had already addressed
the plaintiff’s ability to do computer work at home, the defendants say that it
was excessive to obtain a vocational assessment as well because she had narrow
options and she already knew what she was planning to do in the future.

The defendants further argue that some of the testing undertaken by Mr. Nordin
was unnecessary in the circumstances and refer me to page 8 of the report,
wherein the plaintiff underwent a series of testing related to her academic
skills but then Mr. Nordin concluded at paragraph 44, “[w]hile Ms. Thompson’s
WRAT results suggest she is capable of further training, at age 66 this is not,
in my view, a realistic option for her at this stage of life.”

While a plaintiff’s academic ability would presumably be a necessary
consideration in any proposals for retraining, it does not necessarily follow
that the only reason to test for academic ability is to consider suitability
for retraining options. A plaintiff’s academic ability will also impact upon
his or her ability to take on other occupations where no retraining would be
required. I therefore cannot accept that academic assessment was a pointless
exercise even if retraining were not an option due to her age. Curiously, I
note although the defendants now say that the vocational assessment was not
necessary because retraining was clearly not a viable alternative for the
plaintiff, they specifically pleaded that the plaintiff had failed to mitigate
her damages because she failed to pursue retraining.

Plaintiff’s counsel admitted that he was surprised that Mr. Nordin
commented that it was unlikely that the plaintiff was going to obtain work
outside of the home and that he even considered whether he should not serve the
report. However, I accept that in the circumstances, it was reasonable to
retain Mr. Nordin to perform a vocational assessment of the plaintiff. While
a functional capacity evaluation will address a plaintiff’s physical
limitations, it does not address the kinds of employment positions for which
the plaintiff may be suited, whether by aptitude or interest.

The fact that hindsight may show that the vocational assessment added nothing
to the functional capacity evaluation (and I am not finding that to be the case)
is not the appropriate consideration on an assessment of whether a disbursement
was reasonably incurred. The analysis must be undertaken based upon the
circumstances known to counsel when the disbursement was incurred, and it would
be an error to do otherwise.

Had the matter proceeded to trial, the evidence of Mr. Nordin may
very well have been of value to the trier of fact, and I note that the
defendants specifically pleaded that the plaintiff had failed to mitigate her
damages because she failed to seek and obtain alternative employment.

It is not the role of the assessing officer to second guess the
decisions made by experienced counsel in his or her prosecution of a claim so
long as the decisions made were reasonable with reference to the information
available at the time. In the circumstances, I consider Mr. Nordin’s
report to have been reasonably incurred in the prosecution of the plaintiff’s
claim and it is allowed.

Although the defendants made reference to the cost of the report, I was
provided with no evidence that would enable me to conclude that Mr. Nordin’s
fees were not within the range of what is normally charged, and indeed there
was some evidence that it is less than some vocational assessments. Even if I
had accepted the defendants’ argument that the academic testing was
unnecessary, there was no basis upon which I could adjust or deduct from the

I would like to thank both counsel for the work undertaken before the
hearing to narrow the issues and also for their focussed submissions.

Since the plaintiff has been successful on this assessment, she would
normally be entitled to her costs, but either party may contact the registry
within 14 days of the date of these reasons if either wishes to schedule a
hearing to address the issue.

S. Wilson (as Registrar)”