IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110907

Docket: M085151

Registry:
Vancouver

Between:

Curtis W. Gowler

Plaintiff

And:

Billy Ngo

Defendant

Before:
The Honourable Madam Justice Gray

Oral Ruling on Costs

In
Chambers

[1]            
THE COURT: The application before me is to determine the costs
to be awarded following a jury trial. The plaintiff seeks an order for 100
percent of his costs, or alternatively 50 percent of the part of the trial
regarding liability and 100 percent of the part of the trial regarding damages,
and that alternative position I would calculate as seeking about 75 to 80
percent of his costs.

[2]            
The defence argues that a proper award would be 25 percent of the costs
to the plaintiff or alternatively 50 percent.

[3]            
I will outline the general facts, and I will give some more details when
I discuss relevant factors.

[4]            
The basic background is as follows:  The plaintiff claimed damages for
injuries he alleged he suffered in two motor vehicle accidents. Both of those claims
were heard in a single trial which lasted about 13 days before a jury. The vast
majority of the time at the trial was with respect to the first accident. Between
counsel, the parties were able to settle the question of costs regarding the
second accident. I am asked only to make an award regarding the first accident.

[5]            
The plaintiff Mr. Gowler was a man of somewhere in his fifties at
the time of trial. He had worked as a computer technician. For a few years not
long before the first motor vehicle accident, he had a good and steady job and
earned the most he had earned in his working life. He was laid off from that
job a few months before the first motor vehicle accident and he was exploring
pursuing a business as a bartender.

[6]            
Mr. Gowler alleged that the defendant Mr. Ngo was fully
responsible for the accident or, alternatively, 75 percent responsible. The
position of the defence at trial was that the plaintiff was 100 percent
responsible for the accident.

[7]            
Mr. Gowler alleged that he suffered cognitive problems following
the accident, and in particular problems with memory, concentration, and
performing multiple tasks. Mr. Mussio argued that Mr. Gowler suffered
emotional problems following the first motor vehicle accident which caused
cognitive problems. Mr. Gowler claimed significant past and future wage loss. At
trial Mr. Mussio argued that Mr. Gowler should recover something in
the range of about $600,000 for past and future wage loss.

[8]            
The position of the defence at trial was essentially that Mr. Gowler
had exaggerated his symptoms and that in fact he had not suffered a change in
cognitive function following the accident. The defence argued that any problems
Mr. Gowler had with organization and concentration were the same as his
situation prior to the motor vehicle accident, and that following the motor
vehicle accident, he could in fact perform well, including coaching football.

[9]            
The jury verdict was that Mr. Gowler and Mr. Ngo were each 50
percent responsible for the accident. The jury assessed the damages at
$250,000, which consisted of $85,000 for non‑pecuniary damages, $15,000
for past wage loss, $129,000 for lost future earning capacity, $16,000 for cost
of future care, and $5,000 for special damages.

[10]        
Because of the 50/50 liability split, the award to Mr. Gowler,
before considering interest, was therefore $125,000.

[11]        
The applicable law for a costs application like this starts with the Negligence
Act, s. 3(1). That provides that:

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.

[12]        
That section has been held to give a discretion to a trial judge. That
was discussed in White v. Bickley, 22 B.C.L.R. (3d) at 159, at paragraph
15 and 16. I will read from the reasons of Mr. Justice Goldie, which were
concurred in by the other members of the court:

15   The opening words of s.3 "Unless the Court
otherwise directs" confer a discretion on the trial judge. So much was
found by this Court in Peters v. Davidson 1982 CanLII 513 (BC C.A.), (1982), 41 B.C.L.R. 330 (B.C.C.A.); and Moore v. Dhillon 1993 CanLII 602 (BC C.A.), (1993), 85 B.C.L.R. (2d) 69 (B.C.C.A.).

16   In Moore, the cross appeal by the defendant was
against the decision of the trial judge granting the plaintiff her full costs. In
considering whether the trial judge erred in the exercise of his discretion
under s.3, Taylor J.A. said at 74:

While 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.

[13]        
The case before me is one where Mr. Gowler was a successful
personal injury plaintiff against Mr. Ngo, and Mr. Ngo suffered no
injury or damage. It is therefore one of the situations in which the s. 3 prima
facie rule has a potential for injustice.

[14]        
The factors to take into account in considering the court’s discretion
are discussed in my decision in Moses v. Kim, 2007 BCSC 1820. I will
talk about the Court of Appeal decision in a moment, but I will ask that the
reasons for judgment, if they are reproduced, will now include paragraph 13 of
the Moses v. Kim decision.

[13]   The authorities demonstrate many factors the court has
considered in exercising this discretion. Among them are the following:

(a)  the seriousness of the
plaintiff’s injuries;

(b)  the 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;

(e)  the costs of getting to trial;

(f)  the 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
results achieved;

(h)  the positions taken by the
parties at trial, in particular whether the positions taken were appropriate and
reasonable in the circumstances;

(i)  whether the defendants made
any settlement offers;

(j)  the 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.

[15]        
Applying those factors in Moses v. Kim, I came to the conclusion
that Mr. Moses was entitled to 90 percent of his costs on Scale B. That conclusion
is set out at paragraph 22.

[16]        
The order in Moses v. Kim went to the Court of Appeal. The Court
of Appeal appears to have accepted the list of factors set out in paragraph 13
of my decision, but concluded it was an error to take into account the legal
fees as a relevant factor in departing from the usual rule. The Court of Appeal
fixed Mr. Moses’ recovery of costs at 75 percent of his taxable costs. So
while the Court of Appeal reduced the costs awarded to Mr. Moses, they did
not apply the usual rule under s. 3, which would have resulted in Mr. Moses
receiving 35 percent of his costs.

[17]        
I will go through those factors now with respect to the case before me. The
plaintiff’s injuries were sufficiently serious that the jury assessed the
damages at $250,000. Mr. Gowler’s damages were not as serious as Mr. Moses’s
damages of $623,000, and Mr. Moses could not work competitively following
the accident. Mr. Gowler’s damages were not as minor as in some other
cases cited to me where the award was as low as $25,000.

[18]        
With respect to Item (b), liability was denied in this case by the
defence. There was some discussion that ICBC had assessed liability at 50
percent, but the evidence did not show that either party made any formal
communication to each other of a willingness to settle liability at 50 percent.
This was not one of those cases where a plaintiff had no memory of an accident
and had difficulty establishing liability.

[19]        
With respect to Item (c), the defence made a formal offer to settle for
$90,000 plus costs to December of 2010. The plaintiff made an offer to settle
for $225,000. The trial was in the spring, April 18 through May 7, 2011.

[20]        
With respect to Item (d), the plaintiff was not required to go to trial
to obtain any recovery, because the defence had made the offer of $90,000, but the
defence offer was less than the trial award.

[21]        
With respect to (e), the costs of going to trial were significant in
this case. The type of injury Mr. Gowler suffered is a type of injury which
is expensive to prove because it relates to cognitive problems. It involved
assessments by psychiatrists and similar experts, so there were significant
costs in proving the kind of damages that the plaintiff suffered.

[22]        
With respect to (f), the difficulty and length of the trial, in this
case it was a 13‑day jury trial. Any trial is difficult, and it is certainly
difficult for a plaintiff to go through a jury trial, but it was not unusual
and, in my view, it is a neutral factor in this case.

[23]        
Factor (g) is 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 results achieved. In this
case, the plaintiff says that his costs and expenses of going to trial are
about $104,000, but there was no breakdown given about precisely what those costs
are. They have not been established before a registrar or set out in a draft
bill of costs, so I am simply assuming that a significant amount of the claimed
costs and expenses relate to experts’ fees and experts’ reports. I make that
assumption because there were a large number of experts who testified at the
trial, and because of the nature of the injury.

[24]        
Item (h), the positions taken by the parties at trial, were very
different. Essentially the plaintiff’s position was that the defence was fully
responsible and that he had a significant injury. The defence position was that
the defendant was not at all responsible for the accident and that in any event
there were no damages from the accident. It was certainly open on the evidence
to both parties to take those positions, and I cannot say that either side took
a position which was unreasonable. It was a case where the jury verdict was one
of divided success for the parties, based on how the parties argued their case
at trial.

[25]        
Item (i) is whether the defendants made any settlement offers. As I have
said, the defendant made a settlement offer of $90,000 plus costs in December
of 2010.

[26]        
Item (j) is the ultimate result of the trial. As I have said, the result
was an award of $125,000, which takes into account the division of liability.

[27]        
Item (k) is whether the plaintiff achieved substantial success that
would be effectively defeated if costs were awarded pursuant to s. 3(1) of
the Negligence Act. In this case, the award was $125,000 and the costs
claimed are about $104,000. In that context, 50 percent of the costs and
disbursements claimed is very significant. I contrast that with the Sartori
case, 2011 BCSC 419, where the court commented that a $45,000 difference in
costs was not a “punishing” costs order. Sartori was a case where the
award was for $235,000. Therefore, $45,000 was less than 25 percent of the
amount of the award.

[28]        
I will add an additional factor. In this case, the evidence and argument
relating to liability, I would assess, took about three days of the trial, and
the portion relating to damages took about 10 days. In any event ‑‑

[29]        
MR. HUNGERFORD:  My Lady, just ‑‑
My Lady, sorry to interrupt, is that including opening day and last day of
submissions for trial and everything?

[30]        
THE COURT:  Yes, I am very roughly ‑‑

[31]        
MR. HUNGERFORD:  Okay.

[32]        
THE COURT:  — assessing that.

[33]        
MR. HUNGERFORD:  Thank you.

[34]        
THE COURT:  I will say counsel did not agree on how much time at trial
related to liability. Mr. Mussio suggested two days and perhaps a bit more:
Mr. Hungerford for the defence suggested three to four days. My best
recollection and assessment on the evidence I have been given at this hearing is
about three days for liability.

[35]        
In my view, in this case the most important factors are the costs of
proving damages for an injury of this type, the fact that there is a very
significant claim for disbursements, and the fact that the amount of the award
is $125,000 and the costs claimed are about $104,000.

[36]        
Mr. Mussio asked me to take into account some borrowing that Mr. Gowler
did prior to the trial. In my view, that is not a factor I can take into
account, nor can I take into account the legal fees, based on the decision of
the Court of Appeal in the Moses v. Kim case.

[37]        
Looking at all the applicable factors, in my view it would be unjust to
award the plaintiff only 50 percent of his costs. That is because his award
would be so diluted by the need to pay his disbursements that he would not have
a sufficient recovery. However, it is not a case where Mr. Gowler’s
damages were so significant as in the Moses case.

[38]        
Looking at the cases and all the applicable factors, in my view, the
appropriate award is that the plaintiff should recover 65 percent of his costs.

[39]        
I hope that is clear. That order would, of course, be subject to the
registrar’s determination of what are the recoverable costs and disbursements,
unless counsel agree.

“Gray
J.”