IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121015

Docket: M125976

Registry:
New Westminster

Between:

Mark Alexander
Estey

Plaintiff

And

Nicholas Perry
Bateson and Batesons Martial Arts Ltd.

also known as
Batesons Martial Arts Ltd.

Defendants

Before:
Master Caldwell

Reasons for Judgment

[1]            
The plaintiff applies for an advance of $35,000 on his claim for damages
relating to a motor vehicle accident which occurred on August 16, 2008 and for
costs thrown away as a result of the adjournment.

[2]            
Liability has been admitted and the trial, which was set to commence on
February 13, 2012 for 10 days, was adjourned on that date by Fitzpatrick J.; at
the time of the adjournment leave was granted to the plaintiff to apply for an
advance and for costs thrown away.

[3]            
While the matter was directed to be re-set for 15 rather than 10 days,
the main reason for the adjournment was a late change of counsel on the part of
the defendants. That change became necessary when original defence counsel was
required to withdraw from practice for medical/health related issues.

[4]            
Certain matters are clear on the sworn material:

1.       liability was
contested until the eve of trial;

2.       plaintiff’s counsel
was required to prepare to establish liability;

3.       plaintiff’s
counsel had several witnesses, including experts, prepared and on notice to
attend the trial;

4.       no fault can be
attributed to the defence for the late change of counsel;

5.       the
plaintiff had incurred considerable expense relating to special damages and witness
preparation and attendance fees;

6.       the
trial will now be heard sometime in mid-2014, a delay of some two years from
the time of the adjournment.

[5]            
Master Keighley considered the issue of the jurisdiction to order an
advance other than as a term of an adjournment in the case of Cikojevic v.
Timm, 2007 BCSC 1689 and found that such jurisdiction does exist. In
addition, I rely upon the order of Fitzpatrick J. which expressly granted
the plaintiff liberty to make such application in this particular case.

[6]            
The court has a discretionary authority to order that an advance be paid
but such order should only be made in special circumstances and only if the
judge or master is satisfied that there is no possibility that the ultimate
award of damages will be less than the amount of the advance: see Serban v.
Casselman, [1995] B.C.J. No. 254 (B.C.C.A.) and Cikojevic v. Timm,
2008 BCSC 74. Two of the considerations which the court must address are the
length of time which will pass until trial and whether the delay will cause the
plaintiff financial hardship: see O’Ruairc v. Pelletier, 2002 BCSC 1107
and Cikojevic.

[7]            
Prior to the accident the plaintiff supported himself by buying,
restoring and selling cars and pool tables. The evidence regarding his
financial situation reveals that he earned a modest income which met his basic
day to day needs and expenses.

[8]            
Since the accident the plaintiff says that he has been limited in his
ability to return to such pursuits, that his income is significantly reduced
and that he has had to rely on the generosity of friends and family in order to
survive.

[9]            
The plaintiff’s experts tend to support the position of the plaintiff
regarding his injuries and his ability to work and earn income. Reference to
the various reports and to the submissions of plaintiff’s counsel, the material
suggests that:

–         the plaintiff did not
complete high school;

–         his
injuries include soft tissue complaints, right rotator cuff tendinitis, left
knee pain, mild traumatic brain injury/concussion, psychological and emotional
injury including depression and elements of PTSD;

–         his work and
recreational pursuits will be affected by his injuries;

–         he may require
vocational rehabilitation.

[10]        
I am prepared to accept, for purposes of this application, that the
plaintiff was injured and had his ability to work compromised for a time; I do
not know for how long.

[11]        
I am also left with a complete lack of evidence as to how much money,
particularly income, the plaintiff claims to have lost as a result of the
accident. He says, at paragraph 19 of his affidavit #2 that “I was making a
sufficient amount of money prior to the Accident, which allowed me to support
my daily costs of living” and then goes on to say at paragraph 21 of that
affidavit that “since the Accident, I have requested and received monetary
assistance from my family and friends, in order to support my daily cost of
living.” At no point does he put a figure to either of these assertions other
than to suggest that he is requesting a $35,000 advance “to help me support my
daily cost of living, including my medical expenses”.

[12]        
I am prepared to find that the plaintiff was subsisting on his income
prior to the accident and that he has been forced to live in a deficit position
since the accident. Absent evidence of actual loss or shortfall, and on an
interim “advance” basis, I am prepared to estimate that a minimum shortfall of
$2,500 per year for each of the six years from accident to trial is appropriate.
There will be an order for an advance payment to the plaintiff in the amount of
$15,000 forthwith.

[13]        
In addition to the above advance, I am satisfied that the plaintiff is
entitled to his costs thrown away including preparation for the trial of this
matter which was adjourned on the first day of trial, February 13, 2012 in any
event of the cause. I have not been asked to quantify those costs at this time
and my review of the material indicates that it is unclear as to which of the
professionals have actually been paid for their trial preparation and
attendance or late cancellation; accordingly that issue will have to be dealt
with in the normal fashion as part of the assessment of costs.

[14]        
Finally, I have reviewed the special damages as claimed. The plaintiff
has clearly spent considerable money on medications and physiotherapy as well
as other treatments such as those provided by Japan Shiatsu Inc. I am unable at
this point to determine the propriety of all of these treatments or expenses
however I am prepared to order an additional advance on special damages in the
amount of $1,500, again payable forthwith.

[15]        
The plaintiff is entitled to his costs of this application in any event
of the cause.

“Master
Caldwell”