IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130806

Docket: M102220

Registry:
Vancouver

Between:

Xiao Yu Luo

Plaintiff

And

Rodeneil A. De
Chavez and Alma De Chavez

Defendants

Before:
District Registrar Cameron

Oral Reasons for Decision

[1]            
This assessment follows upon the settlement of a personal injury claim
that bi its terms provided that the Plaintiff was to recover her assessed costs
and disbursements .The only matters in issue were two disbursements. A claim
for postage that I have determined, and a claim for a medical report authored
by Dr. Kleinman in the sum of $4,800.

[2]            
The principles that are applicable are succinctly stated by Master
MacNaughton (sitting as Registrar) in Turner v. Whittaker, 2013 BCSC
712.  Her Honour says the following at paragraph 5:

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.

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.

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.

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.

[3]            
In this case Mr. McKechnie advised that the challenge to this disbursement
was not grounded on whether it was necessarily or properly incurred, but
rather, whether $4,800 was a reasonable amount to pay for it.

[4]            
In Dhillon v. Bowering, 2013 BCSC 1178 Her Honour Registrar
Sainty ruled on a number of contested disbursements, many of which were for
medical reports obtained by the Plaintiff in support of a claim for damages in
a personal injury claim.  Dr. Kleinman was one of the physicians who reported
on the Plaintiff’s circumstances and condition in that case.

[5]            
Her Honour said the following:

In my view, it is not essential to have evidence from each
expert of their specific hourly rates; nor an exact record of all of the work
done or the like.  In many instances (as here), the work product speaks for
itself.  Also, I am of the opinion that counsel may (and in fact should) rely
on their own experience in similar matters in determining the reasonableness of
an expert’s account.  It is not required, in each instance, that counsel cross examine
her expert to determine the expert’s hourly rates, the time spent by the expert
in carrying out the retainer or to determine other details of the expert’s
charges.  Upon receipt of a report (and accompanying invoice), counsel should
review the report and confirm that it meets the instructions provided to the
expert.  As for the costs of that report, counsel should satisfy herself that
the amount is reasonable (based on the instructions provided to the expert, the
work product provided and her personal experience with the particular expert or
others with similar expertise).  If satisfied with her personal
"inquiry", counsel should then pay the expert’s fees.  If there is a
concern with respect to any of the facets of the inquiry, then counsel should
seek additional information from the expert as to how that expert arrived at
the fees charged.

In making my decision on
reasonableness — I undertake a similar inquiry.  First I consider the work
product.  I look at the invoice to see the amount charged.  Then I compare the
two, relying on my own experience with similar experts and their costs.  If I
have a concern with the work and the cost, I may reduce the amount requested to
some more reasonable amount.  On a very rare occasion, I may even ask counsel
to provide (or obtain from the expert) a more specific breakdown of the expert’s
invoice, but that is certainly not required in every instance.

[6]            
Registrar Sainty reviewed the time spent by Dr. Kleinman, the
report that he provided and was satisfied that his disbursement for preparing
that report should be allowed in the amount claimed, which was $4,800.

[7]            
In this case I have the evidence of Mr. Orr-Ewing.  In his Affidavit of
justification he testified to his retainer of Dr. Kleinman and the reasons
therefore saying:

Dr. Kleinman was retained by our
office for the purposes of conducting an independent medical examination.  The
purpose of this examination was to obtain a clear picture, diagnosis and
impression of the plaintiff’s presenting symptoms.  This invoice relates to Dr.
Kleinman’s assessment of the plaintiff and the preparation of his resulting
medical-legal report.

[8]            
He goes on to say:

It is my professional opinion that a medical-legal report is
of more assistance to the court and carries more weight in settlement if the
expert opining has had the opportunity to physically examine and interview the
plaintiff.  It is my practice to have essentially all medical experts on any
given case meet with the plaintiff for a thorough assessment prior to preparing
their opinions.

Dr. Kleinman prepared a medical-legal report dated June 7th,
2012.  In preparing his report, Dr. Kleinman reviewed a number of medical
reports, including MRI imaging.  He met with the plaintiff, took a medical
history and performed a medical examination.  He recommended inter alia that
the plaintiff be assessed by an orthopedic surgeon to be re-evaluated for
surgical stabilization.

Dr. Kleinman in his medical-legal report opined that the
plaintiff suffered a complete rupture of the anterior cruciate ligament.  That
is the main stabilizer for the interior translation of the tibia on the femur. 
He also found the plaintiff had a partial tear involving the origin of the
medial head of the gastrocnemius.  Dr. Kleinman opined these injuries resulted
from the motor vehicle accident in question.

In furtherance of this assessment of the plaintiff’s
disbursements, I contacted Ms. Manjola Tabaku, billing supervisor as CIRA
Medical Services.  CIRA Medical Services have now taken over from Med Assist
and following the same billing procedure.  I was advised by Ms. Tabaku and
verily believe that the effective hourly rate for the independent medical
assessments for physiatrists ranges from 600 to $800 per hour.  Ms. Tabaku
confirmed that the basic flat rate for an assessment and medical-legal report
is 4,000 to $4,800 exclusive of tax with additional work required charged at
$600 per hour.

Ms. Tabaku further advised that
a portion of those fees include administrative costs of CIRA Medical Services
and that this is a practice they charge of all their clients, including the
Insurance Corporation of British Columbia.

[9]            
In his submissions, Mr. McKechnie urged me to find that I had
insufficient evidence to support a claim this disbursement presented at
$4,800.  With respect, I disagree.  From the evidence that is before me, and it
was not challenged, the effective hourly rate charged by Dr. Kleinman was between
600 to $800.

[10]        
In this case after taking into account the hourly rate, considering the
total cost for the report, relying upon my own experience , and having reviewed
the detailed report that was authored I am satisfied that the disbursement is
reasonable as to amount and I allow it  as claimed.

[11]        
The Plaintiff is entitled to the costs of this assessment.

(Submissions)

[12]        
THE COURT:  Costs are awarded to the Plaintiff in the sum of $830
inclusive of disbursements on this assessment.

“District
Registrar Cameron”