IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120810

Docket: S047217

Registry:
Vancouver

Between:

Alexa Suzanne
Fairchild

Plaintiff

And

Vancouver Coastal
Health Authority, Piotr A. Blachut,
Pierre Guy, David Nelson, Mark Shekhman, Aaron Jonah,
Alison Hark and John and/or Jane Doe 2

Defendants

Before:
The Honourable Mr. Justice McEwan

On appeal from:  A decision
of a Registrar dated May 10, 2011

(Fairchild v.
Vancouver Coastal Health Authority,

2011
BCSC 616, Docket No. S047217)

Reasons for Judgment

I

[1]          
The plaintiff appeals a Registrar’s decision disallowing and, in some
cases, reducing certain disbursements incurred in the course of preparing her
personal injury action for trial. The Registrar’s hearing followed a settlement
of a complex medical malpractice action in which both liability–more
specifically, causation–and quantum were in issue.

[2]          
The facts of the underlying case, in outline, were as follows:

7. On January 10, 2003, the Plaintiff, Alexa
Fairchild, fractured her leg while skiing at Whistler. She was taken to a
clinic in Whistler and thereafter sent to VGH for treatment. The Plaintiff
arrived at VGH at around 8:00 p.m. and underwent surgery the following day, January
11, 2003, at around 2 p.m.

8. Following surgery, the Plaintiff began to
complain of pain in her leg beginning in the early hours of Sunday January 12,
2003. Sometime that day, the Plaintiff developed compartment syndrome, a
potentially life and limb threatening condition. She subsequently underwent
surgery (a fasciotomy) to treat the compartment syndrome around 10:00 p.m. on
Sunday January 12, 2003.

9. The case was based primarily on
allegations of inadequate post surgical care and failure to properly diagnose
and perform the necessary emergency fasciotomy after the plaintiff developed
compartment syndrome in her fractured leg. Compartment syndrome requires prompt
diagnosis and surgical intervention in order to avoid severe complications
caused by irreversible ischemic changes. The Plaintiff’s claim was that had
adequate care been taken of the Plaintiff, her compartment syndrome would have
been diagnosed and treated much earlier, before permanent damage occurred.

10. As a result of the compartment syndrome,
the delay in treatment and the fasciotomy, the Plaintiff suffered a permanent
partial disability, specifically dropped left foot, dropped left big toe, pain,
loss of sensation and an altered gait. She was also left with significant
scarring and a prominent muscle bulge.

11. The trial of this action was originally scheduled for February
2, 2009 but was adjourned to April 6, 2010 and then further adjourned to
December 6, 2010. The matter settled literally on the eve of trial,
around 6:00 p.m. on December 5, 2010.

[from the plaintiff’s brief]

[3]          
The Registrar’s hearing occupied a day and included viva voce
evidence as well as extensive documentary material. The Registrar explained her
findings in a thorough and extensive 47-page judgment.

[4]          
The focus of this appeal is on four disbursements, or only a fraction of
the full bill of costs and disbursements submitted for taxation.

[5]          
The bills in issue, the amounts presented, and the amounts allowed, were
as follows:

(a)  Joseph Hohmann, a vocational
consultant:

(b)  Mary Richardson, an
occupational therapist/consultant:

(c)  Robert Carson, an economist:

(d)  Dr. Mel Kaushansky, a
psychologist:

II

[6]          
A court ordered award of costs can be set aside if it is based on an
error in principle or is plainly wrong (see Hamilton v. Open Window Bakery
Ltd., [2004] 1 S.C.R. 303, 2004 SCC 9, at para. 27 (cited with approval in Little
Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue),
[2007] 1 S.C.R. 38, 2007 SCC 2. In Little Sisters, the Supreme Court
went on to observe, at para. 49, that “in exercising their discretion
regarding costs, trial judge must … be careful to stay within recognized
boundaries.”

[7]          
Counsel for both parties appear to accept that the test is similar for
the exercise of the Registrar’s function in assessing costs and that the
Registrar must be clearly or plainly wrong or have erred in principle before
the court should interfere with a Registrar’s exercise of discretion.

[8]          
The present Rule applicable is Rule 14-1 (5):

Disbursements

(5)  When assessing costs under subrule (2) or (3) of
this rule, a registrar must

(a) determine which disbursements have been necessarily
or properly incurred in the conduct of the proceeding, and

(b) allow a reasonable amount for those disbursements.

[9]          
The distinction between necessary disbursements and proper disbursements
is set out in Zaenker v. Kirk, 2008 BCSC 1460 at para. 24. “Necessary”
disbursements are outlays that could not be avoided in the conduct of the
proceeding, while “proper” disbursements are those that are reasonably
incurred, although, strictly speaking, avoidable. This appeal is concerned with
“proper” disbursements.

[10]       
In Henry Electric Ltd. v. Woodwest Developments Ltd. (1983), 50
B.C.L.R. 26 at 28 (B.C. Co. Ct.), Huddart Co. Ct. J. observed:

It has long been the attitude of
the court that it should not lightly interfere with the discretion conferred by
that rule on the taxing officer if it appears that he understood the governing
principles: Can. Educ. Films Ltd. v. Haran (1928), 39 B.C.R. 424 at 424-25.
This is a matter of policy and good sense. However, it is clear the R.57(26) permits
the court to make such order as it thinks just.

[11]       
The specific principle the Registrar must apply respecting “proper”
disbursements is found in Van Daele v. Van Daele (1983), 56 B.C.L.R. 178
at 180:

..whether at the time the
disbursement or expense was incurred it was a proper disbursement in the sense
of not being extravagant, negligent, mistaken or a result of excessive caution
or excessive zeal, judged by the situation of the time when the disbursement or
expense was incurred.

[12]       
This is amplified in Dinunzio v. Gill (1986), 5 B.C.L.R. (2d) 189
at 191:

When the taxation is before the
registrar, the fact that the report may not have been used by the parties in
effecting settlement or at trial for the judgment is finally rendered is
irrelevant, provided the disbursement, when it is incurred, meets the criteria
of being necessary or proper expenditures incurred for a full and proper
preparation of a party’s case. Once those criteria are met, that disbursement
should be allowed subject to a further consideration as to the reasonableness
of its amount.

[13]       
These cases were reviewed by Leggatt L.J.S.C. (as he then was) in Morrissette
v. Smith, [1990] B.C.J. No. 193, 39 C.P.C. (2d) 30, in the context of a
case where a Registrar had disallowed a disbursement on a taxation that followed
a settlement, on the basis that it would have been “wholly useless to a trier
of fact”. Leggatt L.J.S.C. concluded that this was a mistake:

It seems, with respect, that the
Registrar, has made an error in principle by focusing on the usefulness of the
report to a trier of fact rather than on whether, in the circumstances, it was
a proper expenditure to fully and properly prepare the case for trial.

[14]       
Counsel for the defendants cites the caution found in Goar v. C.F.
Construction & Design, [1984] B.C.J. No.890, 44 C.P.C. 189 at
para. 3, discussing an earlier Court of Appeal decision in Noble & St.
John v. Bromiley (1928), 39 B.C.R. 518 or p. 520:

It was a question which the
taxing master was much better qualified than a judge to decide, and prima facie
the Court would not interfere in such a case … The rule that a judge should not
override a registrar except on a matter of principle has never been due to any
jurisdictional restriction; it is simply a rule of policy and good sense,
adopted because registrars can go into details better than can Judges.

[15]       
Counsel for the defendants also submit that the Registrar was in a much
better position than this court is because she had the advantage of viva
voce evidence.

[16]       
Counsel for the defendants before this Court have urged that another
factor, proportionality, may be in play since the introduction of the
2010 Rules. A representative iteration of this principle is, they submit, found
in Stapleton v. Charambidis, 2010 BCSC 1642, at para. 32, per Master Baker:

[32]  But fourthly and
significantly, there are the new Rules of Court and their emphasis on
proportionality. Much of the thrust of the quest for proportionality is, of
course, directed to steps and processes in the litigation itself as in, for
example, the discovery of documents, limitations on examinations for discovery
and, indeed, the necessity at an early stage for an overall litigation plan. But
surely this proportionality must, in appropriate circumstances, extend to
disbursements expended by the parties.

[17]       
Used in the only sense in which it is pertinent “proportionality” really
does not add to the concept of reasonableness. The concept of proportionality
in the new rules is an attempt to vest in the court a responsibility that has
always rested with counsel, where it best remains, generally speaking. With
respect to disbursements, specifically, the notion of reasonableness has always
encapsulated a sense of proportion.

[18]       
In this appeal the question is not the reasonableness of the rates
that were charged, but whether the disbursement, as such, was in each case
“proper.”

III

[19]       
I think it best to set out the way the Registrar dealt with each
disbursement in turn.

[20]       
The report of Joseph Hohmann was dealt with as follows:

(c) Joseph Hohmann (Vocational Pacific Ltd.)

[109] Mr. Orchard testified that an element of the
plaintiff’s claim was for “impairment of a capital asset”, i.e. she was seeking
compensation from the defendants for a loss of capacity and impairment of her
earnings potential. Part of the plaintiff’s claim was based on her contention
that she had suffered a permanent partial disability as a result of the
defendants’ negligence. Mr. Hohmann prepared a report dated September 5, 2008.
At page 4 of that report he opined that:

From a vocational perspective, her rehabilitation efforts
have been commendable, in that as soon as she was able to mobilize sufficiently
well to get on and off a bus and to use public transit, she returned to New
York and to her educational program. On completion, she obtained full-time
employment and has worked steadily since that time. There is no information to
suggest that Ms. Fairchild will not continue to pursue this pattern of positive
engagement in the future.

At the same time, although she is fully
employed at the present time, it is likely that she has lost part of her
capacity to fully pursue all of the occupations that would otherwise have
theoretically been open to her. This is the hidden vocational reality. In this
way, her vocational capital has been somewhat decreased as a result of her
reduced assets, tolerances and limitations.

[110] Mr. Orchard testified that he intended
to use this report to show that the plaintiff was not as competitive (in terms
of employability) as a fully able-bodied person.

[111] Mr. Hohmann provided two invoices to
the plaintiff:

(a) Invoice dated September 8, 2008 for 19
hours of time (at $195 per hour) essentially for the review of documents,
testing of the plaintiff, research and report preparation. That invoice is for
$3,970.58 broken down as follows:

(b) Invoice dated December 7, 2010
for preparing for, travelling to and attending at a meeting with Mr. Orchard on
November 1, 2010 for

[112] Mr. Stanger
submits that the plaintiff needed a medical opinion supporting her contention
of impairment of her employability. In this regard, he relies on the decision
of Master Powers (as he then was) in Rule v. Wareing, [1994]
B.C.J. No. 645 wherein the learned Master held (at paragraph 13):

However, it is my conclusion that in this
case at the time the plaintiff decided to incur this expense [of a vocational
rehabilitation report] the only medical evidence which supported the plaintiff’s
position was that of her general practitioner, Doctor McLeod. In addition, the
plaintiff was aware of the conflicting opinions of her own doctors and the
existence of the extensive pre-accident medical history. Prior to incurring the
expense of a vocational rehabilitation report, I think the plaintiff should
have, at least, had a further medical opinion supporting the plaintiff’s
position Therefore, I conclude that the expense was not necessarily or properly
incurred and have disallowed it.

[113] Here the plaintiff did not
change her employment. She finished her training after her injury and then
became employed at the Brooklyn Museum. In fact, I believe she was employed at
that institution when she first saw Mr. Orchard. I agree with counsel for the
defendants that the issue of impairment of a capital asset of the plaintiff’s
was something that could have been dealt with in argument. No report was
necessary. I find that the commissioning of this report was not necessary or
proper in that it was commissioned out of excessive caution or zeal. I
therefore disallow the expense for this disbursement.

[21]       
The Registrar addressed the evidence of Mary Richardson as follows:

(e) Mary Richardson

[148] Ms
Richardson is an Occupational Therapist Consultant. Based on the evidence that
the plaintiff had suffered a permanent partial disability, Mr. Orchard
concluded that there was a care component of the plaintiff’s claim that needed
to be assessed. Ms Richardson met with the plaintiff and prepared a report
(dated August 16, 2007) entitled a "Cost of Future Care Analysis". Ms
Richardson makes a number of recommendations in her report regarding services,
equipment and supplies the plaintiff is likely to need on a go-forward basis to
bring Ms Fairchild’s independence level to her pre-injury status. The cost of
that report (including tax) was $3,625.65 broken down as:

[149] Ms Richardson billed the plaintiff
$120 on July 23, 2008 for reviewing a medical report. I did not hear any
evidence at the hearing regarding what report was reviewed or why it was
reviewed.

[150] On November 28, 2008 Ms Richardson
prepared an addendum to her initial report on counsel’s instructions to
consider the impact on her opinion of the defendants’ position that:

Ms Fairchild would have experienced the
same functional deficits even in the absence of any negligence on the part of
the defendants, therefore, the bulk of the future care items recommended by you
are not compensable.

In that report, Ms Richardson also
considered the impact on the cost of the recommended equipment and services of
the plaintiff’s residence in the United States, not Canada.

[151] Mr. Orchard testified that one of the
reasons he commissioned this second report was so that Ms Richardson might
consider several of the defence experts’ reports and their impact, if any, on
the cost of the plaintiff’s future care. This he said was especially necessary
since, as an occupational therapist, Ms Richardson could not diagnose the
plaintiff’s conditions — she could simply report on the impact of the diagnosed
conditions and the need for the plaintiff to receive care for the diagnosed
problems. Ms Richardson billed $1,751.43 (including tax) for this November 2008
report.

[152] Mr. Orchard next asked Ms Richardson
to provide an updated report in anticipation of the April 2010 trial date. Ms
Richardson met with Ms Fairchild on December 17, 2009 and issued a second,
comprehensive cost of future care report. Mr. Orchard testified that, in his
opinion, this second report was necessary in that the plaintiff’s condition had
changed since 2007 (the date of the first comprehensive report). In fact, he
told me that this second report reduced the amount requested for Ms Fairchild’s
future care on the basis of some of these changes.

[153] The cost of this next report was
$3,095.48, inclusive of taxes, broken down as:

[154] Finally, Ms Richardson provided an
addendum to her January 20, 2010 report because Dr. Hershler made a
recommendation in his report that affected the potential costs of the
plaintiff’s future care and a recalculation was therefore necessary, according
to Mr. Orchard. Ms Richardson charged the plaintiff $397.63 for this addendum.

[155] One further invoice was issued dated
December 7, 2010 for "court preparation", "travel costs"
and "travel time" for $317.48. Mr. Orchard testified that to the best
of his recollection this invoice related to trial preparation in his office. He
noted that Ms Richardson must have been requested to attend at the trial for
cross-examination by the defendants and therefore it was necessary to meet with
her to prepare her for her testimony at trial.

[156] Mr. Stanger only took issue with the
second report He simply submitted that the second report was duplicative and
unnecessary, particularly as there was no significant difference in the
plaintiff’s condition between the date of the first report and the date of the
second one.

[157] There is no doubt that counsel must
exercise reasonable restraint when engaging experts. Here, the second report
was an unnecessary luxury. There is no reason why counsel could not simply have
addressed the changes to the plaintiff’s condition at trial by performing a
mathematical calculation in which some of the items were merely deleted and new
totals provided. For these reasons, I will disallow the cost of the second
comprehensive report ($2,929.03, plus GST of $146.45).

[158] As noted,
Mr. Stanger did not question the reasonableness of Ms Richardson’s fees. Based
on my experience, the amounts charged by Ms Richardson for her work are
commensurate with amounts I have seen charged by experts with similar
experience and expertise engaged to provide cost of future care analyses. I
will therefore allow the balance of Ms Richardson’s charges being $5,847.48,
plus applicable taxes ($206.42 on the sum of $5,208.45 billed before July 1,
2010 and $76.68 on the $639.03 billed after July 1, 2010) for a total allowed
of $6,184.58.

[22]       
The Registrar dealt with the reports of Robert
Carson as follows:

(f) Robert Carson

[159] Robert Carson is a Consulting Economist with Associated
Economic Consultants (“AEC”). He was engaged to do two different types of
reports:

(a) one relating to the plaintiff’s (potential) loss of
earnings in respect of her loss of capacity claim; and

(b) a second calculating the costs of the
future care items recommended as necessary by Ms Richardson in her cost of
future care reports.

[160] All told, Mr. Carson prepared three
different sets of reports. The first set of reports was done to assist Mr.
Orchard to prepare for a scheduled mediation. Mr. Orchard told me that he felt
it important to go to the mediation with some numbers on which he could base
settlement discussions with the defendants’ counsel. The second set of reports
was prepared for use at the originally scheduled trial. And the final set of
reports was prepared for use at the December 2010 trial.

[161] Mr. Carson billed the plaintiff a total
of $11,035 for all of his reports broken down as follows:

(a) For the first reports: $1,535.00;

(b) For the December 2, 2008 reports:
$6,185.00;

(c) On an Invoice dated 1/29/2010, for
"Work-To-Date on Costs of Future Care", the plaintiff was billed $640.00;

(d) On 9/15/2010 Mr. Carson billed
$2,425.00 for:

Economic Loss Report (September 10, 2010) Certifying
Letter (September 10, 2010) Costs of Future Care (September 3, 2010)

(e) By invoice dated 11 /17/2010, the sum
of $250 was charged for "Case Discussion Meeting" (November 12).

[162] Mr. Orchard told me that, in his view,
all of Mr. Carson’s reports were necessary and proper and that the costs
"are what they are". In fact he suggested that the amounts charged
were low based on his experience with similar experts.

[163] The first set of reports was done
based solely on census data. They did not specifically relate to the plaintiff.
In theory, there is nothing wrong in an expert preparing a report based on
census data. In fact, that methodology was found to be acceptable by Master
Baker (sitting as registrar) on an assessment of costs in respect of a report
prepared by Mr. Carson’s firm, AEC. In Bailey v. Thiessen, [2005] B C.J.
No. 1673; 2005 BCSC 1108, Master Baker said (at paragraph 30):

In his affidavit prepared and sworn for
this assessment Mr. Struthers observed "My two reports attached to this my
Affidavit are typical reports on this topic. There is nothing unusual".
With respect, I agree. I see nothing amiss in an expert, particularly an economist
or an actuary, preparing a report based on census data or
provincial/regional/gender averages. Obviously, at trial, counsel would have to
convince the court that such averages are acceptable, but there is nothing
unusual in that. Moreover, I see no criticism in then qualifying such a report
and, effectively, refining its conclusions, when more specific or particular
information becomes available. It seems reasonable to me that if an expert makes
the original calculations, re-calculation by that expert at a small cost is
appropriate.

[164] That however does not end the issue. I
still must satisfy myself that the work done was appropriate and that it was
necessary and proper for the plaintiff to retain an expert to provide this
information. It has been held (Letroy v. Fillo, [1996] B.C.J. No. 472; Moore
v. Dhillon, [1992] B.C.J. No. 3055; and Wheeldon v. Magee, supra,
that these types of reports are opinion in the guise of argument and ought not
to be claimed as disbursements on bills of costs.

[165] In particular, in Moore v. Dhillon,
Master Wilson (as he then was), in respect of a claim for reimbursement of
monies paid to AEC for expert evidence in respect of material relating to a
plaintiff’s alleged loss of future earnings said, at paragraph 262: “I think I
would commit an error if I allowed these two disbursements.”

[166] His Honour then quotes from the
decision of McEachern, C J.S.C. (as he then was) in Sengbusch vs. Priest (1987)
14 B.C.L.R. (2d) 26 (B.C.S.C.) wherein His Lordship said, at page 40 of that
decision:

In my view it is appropriate for the court
to enforce reasonable limits upon the admissibility of opinion evidence. Too
often, as in this case, persons with special training or experience are
retained to construct scenarios or advance arguments in the form of an opinion
when, with proper assistance from counsel, the court is able to analyze the
evidence and reach a proper conclusion on commonplace problems such as
suitability for employment or calculations in personal injury, family matters
or other areas of litigation. The same applies in matters such as the care of
children where opinion evidence is frequently tendered unnecessarily although
it is sometimes necessary to arrange for investigations which the court cannot
conveniently undertake. That is a different matter.

It is unnecessary, however, for experts to
perform the court’s function or for counsel to adduce arguments in the guise of
evidence.

[167] Master Wilson then continues:

[264] In my opinion, the information
contained in the first and second parts I have referred to above, was nothing
more than counsel could have done in argument. What is the point in legislating
a discount factor if parties are going to continue to call evidence upon it?

[168] In Wheeldon v. Magee, supra, in
determining whether to allow the costs of AEC to address a plaintiff’s past and
future wage loss claims, Master Bouck said:

[91] A significant portion of the work
performed in addressing the past wage loss claim is more appropriately work
done by counsel. For example, the economist has created tables which review the
plaintiff’s past reported earnings. A table shows the plaintiff’s T4 earnings,
the taxable benefits, average annual hourly wage and average annual hours of
pay for the years 2000 to 2004. Another table created by this expert shows the
estimates of past earnings from the accident date to the trial date, excluding
employer paid benefits. All of these tables are simply arithmetic calculations
based on the source data provided by the plaintiff. As such, the expertise of
an economist is not required.

[92] The second part of the report
addresses the plaintiff’s loss of future earnings claim. The economist provides
present day multipliers to assist in quantifying this loss. A table is then
produced "intended only to provide general examples of the use of
multipliers" (the author’s emphasis). The expertise of an economist might
be required to provide the multiplier for use by the trier of fact. However, it
is my experience that the examples used in the report are standard fare in any
economist’s report addressing future loss. As such, the creation of this
information does not require the significant use of the expert’s time or
expertise as might be suggested in the overall charges presented.

[93] In those circumstances, a reduction of
the charges presented is warranted.

[169] I agree with these general principles.

[170] In respect of the reports dealing with
the plaintiff’s alleged economic losses, most of the work done relating to the
wage loss claims is work that, more appropriately, ought to be done by counsel.
Certainly the reports here are very much the same as those before Master Bouck
in Wheeldon v. Magee. The tables attached to the reports calculate the
plaintiff’s potential past wage loss and provide an estimate as to a potential
for a future wage potential wage loss. Much of this work could have been done
by counsel. It was not required that an expert be engaged to create this
information. This is particularly so here where the plaintiff was, by the time
the action was commenced, fully engaged in the career of her choice and
working, I understand, for her preferred employer.

[171] As for the "costs of care"
reports, the first such report was done on the basis of information provided by
Ms Richardson and presumed a trial date of December 2009. In my view, that
report was necessary and proper.

[172] The second "costs of care"
report is almost a verbatim recitation of the narrative portion of the first
"costs of care" report. Additionally, the differences in the
calculations are insignificant and most certainly could have been done by
counsel. Thus there was no need for the second "costs of care" report
in my view.

[173] The third and final "costs of
care" report was also, in my view, unnecessary While it is based on
revised information provided by Ms Richardson and is premised on a later
trial date, again, the narrative portion of the report only varies slightly
from the previous reports. In addition, while the costs for Ms Fairchild’s
future care have been reduced, the revised calculations could have been done by
counsel who could have presented the information to the trial judge.

[174] I do not
have a specific breakdown as to how Mr. Carson allocated his fees between the
"costs of care" and "economic loss" reports. Some
"rough and ready" justice then must be employed. The total costs for
Mr. Carson are $8,360. In my view, an appropriate amount for the defendants to
pay in relation to this expert’s reports and opinions is the sum of $3,000.00.
I will divide that amount between before July 1, 2010 (75% = $2,250) and after
July 1, 2010 (25% = $750).

[23]       
Lastly, the Registrar made the following
observations in disallowing Dr. Kaushansky’s invoices:

(g) Dr. Kaushansky

[175] Mr. Orchard said that Dr. Kaushansky
(a psychologist) was retained because there was thought to be a psychological
element to the plaintiff’s non-pecuniary damage claim. Dr. Kaushansky provided
a preliminary opinion (one page in length) on December 17, 2009. In that
opinion he stated that:

Based on some of the personality measures
that were administered, as well as through my interview with Ms Fairchild, it
is apparent that she continues to have difficulty in coping with the trauma
that ensued following the repair of her fractured left keg and its sequelae.
Specifically, she is presenting with features of a Post Traumatic Stress
Disorder (PTSD) and a moderate degree of depression…

[176] Based on those findings, Mr. Orchard
asked Dr. Kaushansky to provide (and he did provide) a more comprehensive
report (dated January 22, 2010). Mr. Orchard said that the purpose of retaining
Dr. Kaushansky was to assist the court in understanding the psychological
aspects of the plaintiff’s claim. She had a large cosmetic deformity on her leg
which she had described as a "hideous muscle bulge". The plaintiff
sought counselling in New York on Dr. Kaushansky’s recommendation.

[177] Dr. Kaushansky issued two invoices for
his work:

(a) Invoice dated January 22, 2010 for the
two interviews with the plaintiff, file review and the writing of comprehensive
report in the amount of $2,345.00; and

(b) Invoice dated December 6, 2010 for $325
for file review; prep time and "team meeting" on November 9, 2010.

[178] Dr. Kaushansky’s hourly rate as noted
on these invoices was $250 per hour.

[179] Mr. Orchard testified that in his
opinion, it was necessary and proper to obtain an opinion from Dr. Kaushansky
and that his fees for the work done were reasonable.

[180] Mr. Stanger submitted that Dr.
Kaushansky’s report is essentially argument in the guise of opinion. It does
not provide any true psychological diagnosis. It only states that the plaintiff
has moderate depression and "features" of PTSD. He submits that I
ought to allow nothing for this consultation and report.

[181] I accept the defendants’ submission.
Dr. Kaushansky’s report did not add anything to the mix, in my view. The
plaintiff appears to have pursued a report from Dr. Kaushansky out of excessive
caution. That does not justify the expense being borne by the defendants.
Viewed objectively, it was not reasonable (at the time or at all) to incur this
expense for the purpose of the proceeding and, in particular, to prove the
plaintiff’s disability: McKenzie v Darke, supra.

[182] It follows
that the charge for the consultation and the subsequent report are disallowed.

IV

[24]       
The specific error alleged in relation to the
Hohmann disbursement is that the Registrar held that because the appellant had
continued to work in her chosen profession, and there was no medical report
stating that she was impaired in her employment, no report was necessary. This
appears to have been based in part on a submission that a vocational report
must be prefaced with a medical report supporting any contention of impaired
employability. Rule v. Wareing (see para. 20 herein) was cited for the proposition
that the cost of a vocational report lacking an adequate medical foundation
will be disallowed.

[25]       
Mr. Hohmann outlined the medical information he
was given at the time he prepared his report, in his Appendix IV. This included
reference to a report from the New York Orthopedics and Sports Medicine Clinic
in April 2005, which Mr. Hohmann summarized:

[Ms. Fairchild] has weakness of the extensor
hallucis longus probably secondary to her compartment syndrome. She also has a
fascial hernia of the anterior compartment. The report indicated that her
function is quite reasonable at this time in that she does not wear an AFO, and
there is no significant functional deficit. However she does have significant
concerns about the physical appearance of the hernia.”

[26]       
In August 2006, Dr. Boyle noted “a permanent
functional impairment with loss of extension of her great toe and ankle,
permanent loss of feeling in her foot and lateral leg…”.

[27]       
In November 2006, Dr. C. Hershler noted that Ms.
Fairchild had “been able to return to some sports in a modified manner. … She
was unable to run smoothly and had been left with diminished sensation in her
left foot … .” He opined “Alexa will have to be more conscious of her foot
drop when she is fatigued, climbing stairs or carrying bags.”

[28]       
While the medical notes Mr. Hohmann considered do
not specifically suggest employment disability they do suggest a degree
of physical impairment. The history does not appear to be complicated by pre-existing
factors or conflicting medical reports as was the case in Rule. Whether
the physical impairment described may have had consequences for the range of
employment available to the plaintiff is something a prudent lawyer would
consult a vocational expert to consider, unless the impairment could not be
considered significant enough to warrant such an expense. The difficulty with
this – and the reason one consults an expert – is that a layperson might not
appreciate the full dimensions of the potential loss without such assistance.
Steady employment in a field unaffected by the impairment is not a factor in
the assessment of limitation, per se: it is essentially a factor in determining
whether or not there is a “real and substantial possibility” that the plaintiff
might be affected in the future by the impairment to her functionality viewed
as a capital asset.

[29]       
The risk in addressing the matter solely in
argument would be that submissions respecting the extent of the loss might well
be considered speculative by the trier of fact in the absence of opinion
evidence

[30]       
In submission, the defence referred to Perren
v. Lalari, 2010 BCCA 140 where the Court of Appeal, per Donald J.A.
observed at para. 32:

32
A plaintiff must always prove, as was noted by Donald J.A. in Steward,
by Bauman J. in Chang, and by Tysoe J.A. in Romanchych, that
there is a real and substantial possibility of a future event leading to an
income loss. If the plaintiff discharges that burden of proof, then depending
upon the facts of the case, the plaintiff may prove the quantification of that
loss of earning capacity, either on an earnings approach, as in Steenblok,
or a capital asset approach, as in Brown.

[31]       
The defence suggests that the effect of the
reports of Dr. Boyle and Mr. Hohmann was that there was no real and substantial
possibility of a future event leading to an income loss. What Mr. Hohmann said
was:

From a vocational perspective, her
rehabilitation efforts have been commendable, in that as soon as she was able
to mobilize sufficiently well to get on and off a bus and to use public
transit, she returned to New York and to her educational program. On
completion, she obtained full-time employment and has worked steadily since
that time. There is no information to suggest the Ms. Fairchild will not
continue to pursue this pattern of positive engagement in the future.

At the same time, although she is fully employed at the present
time, it is likely that she has lost part of her capacity to fully pursue all
of the occupations that would otherwise have been theoretically been open to
her. This is the hidden vocational reality. In this way, her vocational capital
has been somewhat decreased as a result of her reduced assets, tolerances and
limitations.

[emphasis added]

[32]       
Mr. Hohmann’s report went on to detail the
various occupations which might be affected. He then observed:

Another consideration from a vocational
rehabilitation perspective is that job security and career paths are not
absolute. Time and circumstance can change many things, including career paths,
particularly in an age when career change is much more common that it was
previously. According to M. Shinagel, Dean of Continuing Studies at Harvard
University, until a few decades ago, people typically spent their lives in a
single line of work. Now however he states, “Today, the national average is
that people pursue six different careers over their lifetimes.”

Should it be necessary for Ms. Fairchild at
some point in her life to resort to so called back up jobs to earn an income,
her reduced tolerances and difficulties may limit her potential to work in jobs
such as high-speed food server, chambermaid, letter carrier, construction
worker, landscaping, warehouse order picker, nursery work, or occupations that
involve prolonged driving. She may also be less competitive and/or less
comfortable with respect to occupations that rely heavily on physical
appearance or fashionable presentation.

With respect to her future career
considerations, from a vocational rehabilitation perspective, the preferred
course would probably be that she carry on as she is doing. Insofar as she
requires some flexibility with respect to positional change and movement, it
would appear that she is somewhat inconvenienced, but not otherwise compromised
in performing the duties of her current position. However, should that
situation change, or should she return to Canada to work, there is no guarantee
that her physical and other issues would not have a subtle influence on her
employability, depending on the type of position and the individual employer.

***

Although she
has demonstrated commendable motivation and a positive attitude in carrying out
her pre-injury goal and plans, her total vocational capacity has likely been
reduced as a result of her reduced tolerance levels and areas of difficulty.

[33]       
The defence submits that neither Dr. Boyle nor
Mr. Hohmann suggest “a real and substantial possibility of a future event leading
to income loss”, and that counsel knew that when the Hohmann report was commissioned,
making it an “overly cautious and luxurious expenditure”. The Registrar
apparently acceded to this submission, although in her terms the report was
commissioned “out of excess caution or zeal”.

[34]       
I do not think the foundation for a vocational
report requires a medical prognostication about future non-medical, economic or
social events. I do not think that that is a matter of particular expertise among
members of the medical profession, and future possibilities are certainly among
the tasks ordinarily left to the trier of fact. The nexus between the doctors’
assessment of “a permanent functional impairment” and the vocational assessor
is the question, in that person’s circumstances, “what potential range of
employment opportunities might be negatively affected by that impairment?” It
is for the trier of fact to assess the medical findings and the vocational
assessor’s suggestions in the context of the particular individual’s experience
and potential in order to decide if the “real and substantial possibility” test
has been met. The suggestion of a “permanent disability” of more than a trivial
nature, would generally warrant some form of vocational assessment, if only to
eliminate a concern about overlooking whether such damages ought to be claimed.

[35]       
The Registrar’s reasons suggest that the test
applied required that the doctor make a connection of disability specifically
to employment. I think this is more than was, in fact, required, and that a
nexus between disability and vocational impairment may arise in circumstances
where the doctor does not opine specifically on employment prospects. The test
applied was, in my view too prescriptive. Judged from the perspective of
counsel at the time I think it was reasonable, and not an excess of caution or
zeal, to order the report. It follows that I consider the disbursement
allowable.

V

[36]       
The issue with the report of Mary Richardson,
the occupational therapist consultant, was that the Registrar found that it was
essentially redundant. Counsel for the plaintiff submits that the Registrar
erred “in principle and in law” in finding that the second of Ms. Richardson’s
reports ought to be disallowed.

[37]       
The plaintiff’s submission is that the second
report was required as a result of changes in the plaintiff’s condition, and in
response to the defence experts and their reports. The plaintiff submits that
it was important to have a report that was accurate and contemporaneous with
the anticipated trial date.

[38]       
The defence took the position that the second
report was duplicative and unnecessary and that in any event the differences
were insignificant and could simply have been addressed at trial. The defence
further submitted that the evidence before the Registrar did not justify the
high cost of the duplicative account and that the Registrar’s ruling ought not
to be disturbed.

[39]       
Having reviewed the reports I am not sure it is
fair to say there was “no significant difference” in the plaintiff’s condition
between the two reports. I am however, of the view that it was unnecessary to
prepare a new comprehensive report rather than to prepare a simple outline of
the differences. On this item I do not think the decision of the Registrar was
clearly wrong. It was within the taxing assessor’s discretion and
responsibility to disallow redundant expenditures. I would not disturb her
findings with respect to Ms. Richardson’s second report.

VI

[40]       
The Registrar reduced the amount allowed for the
reports of Robert Carson, a consulting economist from a total of $11,035 noted
in para. 161 of the Reasons (para. 22 herein) to $3,000, para. 174 of the Reasons
(para. 22, herein). In arriving at what she called “rough and ready” justice
the Registrar appears to have used $8,300 as the total cost of the Carson’s
reports.

[41]       
The plaintiff submits that the reduction is
based on an incorrect total and is on that basis, clearly wrong. She also takes
issue with the Registrar’s observation that the work relating to economic
losses could have been performed by counsel, and that the second and third cost
of care reports were essentially redundant.

[42]       
The plaintiff’s position is that this is an
error in principle and in law because counsel is not in a position to provide
evidence based on “census data, present values based on statutory discount
rates and labour market contingencies.” The submission relative to these
reports appears to be that the Registrar was clearly wrong in her view that
much of the reports was in the nature of argument in the guise of opinion, in
line with the authorities she cited at para. 164-169 of her Reasons (see para.
22 herein).

[43]       
The Registrar’s ruling in this regard cannot, in
my view, be said to be clearly wrong. What is “proper”, that is, “reasonably
incurred”, depends on the nature of each case. In this case the issues to which
these reports pertained were relatively narrow. The court was not going to be
called upon to assess catastrophic injuries to a young person with multiple
possible career paths ahead of her. The case was about quantifying the
allowance, if any, that ought to be made for the possible loss of a capital asset
in the context of a person whose fundamental expectations was that she would
continue, relatively unaffected by her injuries, in her chosen line of work. I
agree with the Registrar that a much simpler work-up than that which was done
would have sufficed. It is not at all uncommon for relatively straightforward reports
from Mr. Carson and others in his profession to be placed before the court
setting out present value calculations to assist the court in determining the
multiplier that should be applied to arrive at an amount in present dollars of
an assessed future loss. This is entirely appropriate and a matter upon which
the court could not properly instruct itself. Something of that straightforward
nature would have been sufficient in this case.

[44]       
The same is true for the calculation of the cost
of future care. It is trite to say that the exercise in cases of this kind is a
matter of assessment rather than calculation. Once a court has a reliable
indication of the present cost of the future care items and services
recommended, and an appropriate multiplier to apply to those it finds the
plaintiff requires, it generally has what it needs. I think there is a
distinction to be made between expenditure on matters that establish the
factual dimensions of a claim – which may include reports that eliminate
certain claims, and would therefore be unhelpful at trial, but reasonably
incurred at the time – and those which can only be useful to the trier of fact
in quantifying the claim. In general the more inchoate the claim, the less
useful refined calculation will be.

[45]       
In this case, I think the Registrar quite
properly regarded the elaborate reports prepared by Mr. Carson as largely
unnecessary.

[46]       
I am unable to reconcile the $11,035 figure and
the $8,360 figure the Registrar used in coming to her “rough and ready” figure
of $3,000. Rather than focusing on the figure she arrived at as a percentage of
either amount, I think the question for me is whether $3,000 was a reasonable
allowance. I think it was, or to put it another way, I do not think the
Registrar’s exercise of discretion in this respect was clearly wrong. I would therefore
not disturb her finding.

VII

[47]       
The last of the disbursements in issue is that
for Dr. Kaushansky’s report. The plaintiff’s submission is again that the
Registrar focused on the usefulness of the report at trial instead of whether
it was a justified expenditure in preparation for trial.

[48]       
The defendants’ position, explicitly accepted by
the Registrar, is that Dr. Kaushansky’s report does not provide a true
psychological diagnosis and is argument in the guise of an opinion (see para. 23
herein).

[49]       
I do not think this is correct. A lawyer
attempting to establish the dimensions of a claim of this kind might be remiss
in failing to explore whether the injuries, including cosmetic damage, had had
an adverse psychological effect. This is particularly a question of
professional judgment. It was not on its face unreasonable to explore this
dimension of the case, if only (as I have noted earlier) to eliminate the
question of psychological damage.

[50]       
I think, moreover, that the report has been
misunderstood to some extent. A report that notes “moderate depression” and
“features” of post traumatic stress disorder is not a report that does not provide
a “true psychological diagnosis”. The report suggests that the plaintiff does
not meet the criteria for a full diagnosis of post traumatic stress disorder,
not that she does not have psychological symptoms. What Dr. Kaushansky noted in
his report of January 22, 2010, include the following observations:

The literature on physical disfigurement
does indicate persistent depression due to an altered body image and in Ms.
Fairchild’s case there are the additional issues of safety due to physical
imbalance. She regards herself as less attractive and shields her body from the
public (during warmer temperatures or while swimming) given the fear of stares
and potential derision. Given the time since the operation Ms. Fairchild
continues to remain highly self-conscious about her disfigurement. It is my
understanding that scar revisions or further surgery will not appreciably alter
the appearance of either the bulge or the two scarred regions.

It is anticipated that with appropriate
psychological support Ms. Fairchild’s symptoms of depression may diminish. To
that end I have suggested treatment in the New York region with a clinician
knowledgeable with this patient population. However, I view Ms. Fairchild as
continuing to be vulnerable to the vicissitudes of life which we all endure.
Even if there is a significant diminishment in her depression, she will be more
prone to bursts of depression over her lifetime.

Further, given that Ms. Fairchild continues
to present with some features of PTSD, she must be considered to be vulnerable
or “at risk” for future events which a more robust individual might overcome in
a shorter interval. Of note, Ms. Fairchild does portend that something untoward
will occur to her over her young life.

Given these
issues of the potential recurrence of her depression (in hopes that her present
depressive symptoms will settle through treatment) and the persistent features
of a PTSD, Ms. Fairchild needs to be followed by a mental health professional
over her lifetime (6-8 sessions per year and 18-24 per year in times of crisis
are recommended).

[51]       
This is, I think, a diagnosis of “true”
psychological effects. The defendants’ submission and the Registrar’s reasons
suggest that a diagnosis of post traumatic stress disorder would be necessary
to found such a claim. I think a proper reading of the reports is that in the
opinion of Dr. Kaushansky, the plaintiff suffers from psychological effects
short of a full diagnosis of post traumatic stress disorder. I emphasize that
even if Dr. Kaushansky’s report could be interpreted as failing to find a
“true” psychological disorder, the circumstances are such that obtaining a
report to explore whether the case had a psychological dimension would still
have been prudent rather than superfluous.

[52]       
I would accordingly allow the claim for Dr. Kaushansky’s
attendances.

VIII

[53]       
Unless counsel have further submissions to make
on costs I consider this to be a case where the plaintiff is entitled to costs.

 “T.M.
McEwan”

 _______________________________

 The
Honourable Mr. Justice McEwan