IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140911

Docket: 46321

Registry:
Vernon

Between:

Kirby Allan
Hayhurst

Plaintiff

And

Daniel Thomas Rees
and Canadian Road Leasing Company

Defendants

– and –

Docket: 50638

Registry:
Vernon

Between:

Kirby Allan
Hayhurst

Plaintiff

And

Adelle Johnson

Defendant

Before:
Master R.W. McDiarmid

Reasons for Judgment

[1]            
This is an assessment of three disbursements claimed by the plaintiff
following settlement of his claims resulting from injuries he sustained in two
motor vehicle accidents. The first accident was on July 27, 2008 and the second
occurred on June 2, 2011.

[2]            
The disbursements in dispute (excluding applicable taxes) are as
follows:

a)    Meridian
Rehabilitation – report – $4,875.00;

b)    Meridian
Rehabilitation – expert file – $40.00;

c)     Associated
Economic Consultants – report – $575.00.

[3]            
The starting point for assessing a disputed disbursement is Rule 14-1(5)
of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Civil Rules],
which reads as follows:

(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.

[4]            
The background facts are set out in the affidavit of William S. Dick,
who was counsel for the plaintiff in the litigation.

[5]            
In paragraph 3 of his affidavit, Mr. Dick sets out the plaintiff’s
complaints resulting from the July 27, 2008 accident. Paragraphs 4, 5 and 6 of
Mr. Dick’s affidavit are as follows:

4.         Mr.
Hayhurst’s General Practitioner, Dr. Borchert diagnosed Mr. Hayhurst as having
soft tissue injury to his neck and upper back after the accident.

5.         According
to Mr. Hayhurst, prior to his June 2, 2011 accident, he continued to have
ongoing problems with his left shoulder and arm but was able to participate in
work and daily activities.

6.         As a result of the second
accident on June 2, 2011, Mr. Hayhurst exacerbated his complaints of his left
shoulder, upper back and arm.

[6]            
In paragraphs 9 through 14 of his affidavit, Mr. Dick deposes as
follows:

9.         As
mentioned, Mr. Hayhurst was involved in two motor vehicle accidents and as of
the time of the valuation by Ms. Branscombe, it had been approximately five (5)
years since the initial accident. Mr. Hayhurst continued to complain of ongoing
pain and discomfort in from his accident related injuries.

10.       In
addition, Mr. Hayhurst worked as a Lumber Stacker which is a very demanding
physical job.

11.       I
retained Ms. Branscombe to provide a Functional Capacity Evaluation and a Cost
of Care Report. The purpose of this examination was to identify and test Mr.
Hayhurst’s shoulder neck and back to determine what functional disabilities he
had as a result of his motor vehicle accident related injuries, and what cost
of care requirements were needed as a result of his injuries.

12.       The
additional purpose of the examination was to determine if any of his motor
vehicle accident related injuries would prevent Mr. Hayhurst continuing with
his employment as a lumber stacker in a physically demanding job.

13        As a
result of the functional capacity evaluation, Ms. Branscombe concluded that Mr.
Hayhurst was not able to meet the demands of a heavy capacity occupation, and
she made a number of recommendations with respect to rehabilitation services.

14.       With
respect to recommendations, Ms. Branscombe prepared a cost of future care
analysis where she made recommendations based partially on the recommendations
by Dr. Borchert as well as her own independent recommendations based on her
qualifications as an occupational therapist. These recommendations included:

a)         Medications that that been
prescribed by physicians to alleviate symptoms of pain and disability;

b)         Recommendations that would
result in functional improvement or that were required for maintenance and
current functional status. These included retaining a kinesiologist who would
benefit from a carefully formulated gym exercise program designed to minimize
his pain, reduce muscle tension and increase his tolerance for activity.
Included in this cost was a combined pool and gym pass for an exercise program
designed by the kinesiologist for aquatic or land-based exercises.

c)         There was a recommendation for
physiotherapy for twelve sessions;

d)         There was a recommendation for
a ten week progressive goal attainment program, which focused on increasing
function and consisting of weekly one hour sessions at the client’s home. There
were also a number of recommendations for equipment that’ would assist Mr.
Hayhurst in terms of activities he engages in around his home.

[7]            
In paragraph 16 of his affidavit, Mr. Dick deposes that the purpose of
the Associated Economic Consultant’s report was to provide the court with a
present value calculation of the plaintiff’s cost of future care based on the
recommendations of Sheila Branscombe.

[8]            
In paragraphs 18 and 19 of his affidavit, Mr. Dick deposes as follows:

18.       With
respect to costs incurred in retaining Sheila Banscombe and Mr. Carson, in my
opinion, these were expenses necessary in order to determine what cost of care
requirements were necessary for Mr. Hayhurst, and to properly prosecute this
claim if it were to proceed to trial.

19.       Ultimately, the Plaintiff in
this action accepted an offer from ICBC which was relatively modest. However,
if this matter did proceed to Trial and Mr. Hayhurst decided he wished to
proceed, it was my intention to claim for losses associated with cost of care
and possibly earning capacity, and seek damages in excess of what the Plaintiff
ultimately accepted. I would not have been able to do so without the reports of
Ms. Branscombe and Mr. Carson.

[9]            
Esther Moore, a paralegal who assisted counsel for the defendants, swore
an affidavit setting out additional relevant facts. In paragraph 8 of her
affidavit, she summarizes extracts from the plaintiff’s examination for
discovery. Paragraph 8 of her affidavit is as follows:

8.         On
February 26, 2013, the Plaintiff was discovered in both actions. At no time
were any appointments taken out for an examination of discovery of the
Defendants in either action. Attached hereto, collectively marked Exhibit
“6” to this my Affidavit are true copies of excerpts from transcript of the
Plaintiff’s February 26, 2013 Examination for Discovery. At his examination for
discovery the Plaintiff deposed that:

i)          He has been employed with
Tolko since 2003 and has been an equipment operator since 2004. His work is
physical, it requires lifting and bending. On any given day he can lift 5 to
200 pounds, from every few minutes to maybe an hour (p. 5 to 9)

ii)         He missed a couple of days,
about three as a result of injuries suffered in the 2008 MVA and 2011 MVA,
which occurred in 2009 (p. 6,11).

iii)        In the summer of 2009 he
reported a work injury on June 30, 2009, but did not pursue a WCB claim (p.
11,12).

iv)        It was after he made the WCB
claim that he missed a few days of work (p. 16).

v)         He had been working full time
from the 2008 MVA up until the summer of 2009 (p. 34).

vi)        Dr. Borchert’s reference to
returning to work full time in April 2009 referred to a fracture to his left
knee (p. 34).

vii)       He did not have any worsening
of complaints in the snowboarding accident wherein he fractured his knee. He
was off work for six weeks as a result of this injury (p. 35).

viii)       He did not report “totally
recovered by September 1, 2008” as noted in the WCB physician report date
stamped July 10, 2009 (p. 45, 46).

ix)        He was assaulted in a night
club in December, 2010 and suffered an aggravation of his neck and shoulder (p.
56).

x)         The Plaintiff dislocated his
left shoulder on February 7, 2011 while getting up from bed. He could not
recall if he had physiotherapy treatment following this incident. The last
occurrence pre 2008 was “years ago”. The February 2011 dislocation worsened his
complaints for approximately 2 months (p. 39, 40).

xi)        He did not suffer any new
injuries in the June 2, 2011 MVA (p. 19).

[10]        
The claims were ordered to be heard at the same time with the trial
scheduled to proceed on September 9, 2013, pursuant to Rule 15-1 of the Civil
Rules. The trial did not proceed on that day.

[11]        
On June 17, 2013, the defendants made an offer to settle. On November 5,
2013, the plaintiff accepted the defendants’ offer of $32,500.00 new money,
plus costs and disbursements.

[12]        
In determining whether or not these disbursements were necessarily or
properly incurred, the test is whether they were necessarily or properly
incurred at the time the reports on which the disbursements are based were
ordered.

[13]        
In Toopitsin v. McMullen, 2014 BCSC 1486, Mr. Justice Rogers
succinctly summarized what a trial judge considers when dealing with a claim
for loss of earning capacity. At paras. 37-38, he writes:

[37]      A successful claim for loss of earning capacity
must be founded on evidence that there is a real and substantial possibility of
a future event leading to an income loss: Perren v Lalari, 2010 BCCA
140. The factors that need to be considered in assessing the impact of that
possible future event on earning capacity include whether:

1.         The plaintiff has been rendered
less capable overall from earning income from all types of employment;

2.         The plaintiff is less marketable
or attractive as an employee to potential employers;

3.         The plaintiff has lost the
ability to take advantage of all job opportunities which might otherwise have
been open to him, had he not been injured; and

4.         The plaintiff is less valuable
to himself as a person capable of earning income in a competitive labour
market.

(Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 at
paragraph 8)

[38]      Some claims for
reduction of earning capacity are amenable to calculation and actuarial
assessment, but many are not. The claims that are not typically involve
claimants who have not yet entered the work force or have settled on a career
or occupation. In those cases, the loss is assessed rather than tabulated. The
assessment process must take into account all of the relevant evidence relating
to the claimant’s circumstances as well as the positive and negative
contingencies that do or will bear upon the claimant’s working life.

[14]        
In Amini v. Mondragaon, 2014 BCSC 1590, Mr. Justice Greyell
writes at para. 128:

[128]    In my view, Ms. Amini
faces several insurmountable hurdles in seeking to recover damages for loss of
future earning capacity. As stated, the Court has no functional capacity report
before it which allows it to make an assessment of what Ms. Amini’s employment
demands are and what limitations she has or may have in being able to carry out
such demands, whether in her regular employment as a Nursing Instructor or as a
casual part time home care nurse. She is able to continue her work as a
clinical instructor. The Court has a prognosis from Dr. Hershler which simply
says she will be "limited in her ability to work effectively in the long
term." There is no evidence before the Court as to the extent of such
limitation or the meaning of "long term".

[15]        
The real question, then, is: was there a real and substantial
possibility of a future event leading to an income loss when taking into
account this plaintiff’s situation?

[16]        
In his medical/legal report dated November 28, 2011, Dr. Borchert, the
plaintiff’s family doctor recites a visit by the plaintiff on July 29, 2008,
one day after the first motor vehicle accident. He comments in the last
sentence on the first page of his report, “I should mention that Kirby has no
previous history of upper back or neck problems.” Dr. Borchert goes on to
document some other visits. In describing a visit on October 13, 2009, he
writes:

He returned to my office on
October 13, 2009. He had been attending the physiotherapist. There was still
pain medial to his left shoulder blade which radiated into his left upper limb.
He was having flare-ups of his pain after three to four hours at work. The
Celebrex was helping somewhat. He was also using Tylenol #3 as needed. Mr.
Hayhurst works as a labourer and needs to lift heavy objects with his left upper
limb. I gave him a note stating that he should only perform light duties as
tolerated, due to a medical problem. I also refilled his prescription for
Tylenol #3.

[17]        
On the same page he wrote:

Kirby returned on March 16, 2011.
The pains in his left upper limb were persisting. He had unfortunately
dislocated his left shoulder while in bed, on February 7. This has happened in
the past.

[18]        
The paragraph following the recitation of the March 16, 2011 visit is as
follows:

Mr. Hayhurst was last seen in my
office on November 28, 2011, at which time his chart was reviewed. Mr. Hayhurst
was still feeling pains in his upper back, left neck and left upper limb. He
experiences these pains generally for a few days per week. He is working
full time. I gave him a prescription for Naproxen and Tylenol #3 to be used
as needed. He is presently attending physiotherapy treatments as needed, as
opposed to on a regular basis as previous. [Emphasis added]

[19]        
As noted in para. 1 above, the second motor vehicle accident occurred on
June 2, 2011.

[20]        
Dr. Borchert summarizes as follows:

In summary, Mr. Hayhurst has suffered soft tissue injuries of
his neck and upper back related to the motor vehicle accident of July 28, 2008.
Mr. Hayhurst does not have a previous history of upper back pains or neck
problems. The injuries, symptoms and resulting disabilities appear to be
entirely attributable to the motor vehicle accident.

Mr. Hayhurst is now approximately
three years post motor vehicle accident. Most of his symptoms have somewhat
levelled off. I suspect that his musculoskeletal symptoms will naturally
improve over the next few months to two years. Mr. Hayhurst will likely require
intermittent use of physiotherapy during that time. Secondary to the motor
vehicle accident, Mr. Hayhurst will be more prone to new injuries of his neck
and or upper back in the future.

[21]        
As can be seen from a review of Dr. Borchert’s letter, there is no
mention of the June 2, 2011 accident.

[22]        
In June of 2013, the defendants served plaintiff’s counsel with a notice
to admit seeking admissions of certain WorkSafeBC (“WCB”) documents, which were
admitted.

[23]        
The WCB’s physician’s report dated July 1, 2009, the attending
physician, Dr. F. Healey wrote “No” in a section entitled “Prior/Other Problems
Affecting Injury, Recovery or Disability”. His diagnosis text was “muscular
sprain back/shoulder” which, from the document resulted from repetitive
loading. Dr. Healey wrote that the plaintiff was not medically capable of
working full duties, full time at that point. A further physician’s progress
report dated July 10, 2009 comments “muscular strain and whiplash MVA July 18,
2008. Mostly recovered by August 1, 2008”, and then goes on to discuss a
shoulder injury resulting from a workplace incident. The final WCB report dated
July 23, 2008 comments on the left shoulder injury and under the “Return to
Work Planning” section opines “Continue with light duties”. As can be seen from
the discovery extracts referred to in para. 9 above, the plaintiff disagreed
with some of what was written in the WCB notes.

[24]        
In submissions, I was referred to the Functional Capacity Evaluation and
Cost of Future Care report. Referring to what was concluded in the report is
not of assistance in considering the test that I must apply, which is, as
previously stated, whether at the time the report was ordered it was either
necessary or proper.

[25]        
In making my determination, I was assisted by the decision of Master
Bouck, sitting as registrar, in Cooknell v. Quinn, 2013 BCSC 1653 where,
at para. 33, she writes:

[33]      Collectively, the parties rely on more than one
dozen authorities. With respect to the approach to be taken by the registrar on
this particular assessment, the following tests or principles are most
applicable:

1.         A disbursement will be
disallowed if determined to be a result of extravagance, negligence, mistake,
excessive caution or zeal, as judged by the situation at the time when the
disbursement was incurred: Van Daele v. Van Daele (1983), 56 B.C.L.R.
178 (C.A.) at para. 109;

2.         The Supreme Court Civil
Rules (the "SCCR") "have placed new emphasis on the
caution against expenses that are extravagant or the result of excessive
caution or zeal …": Stapleton v. Charambidis, 2010 BCSC 1642. The
concept of proportionality has always been alive in the costs assessment
process: Kern Chevrolet Oldsmobile Ltd. v. Canadian Pacific Ltd. (1986),
7 B.C.L.R. (2d) 170 (C.A.);

3          .In cases where factual
assumptions must be made before costly expert opinions can be obtained, the
disbursement for that opinion must be premised on a thorough and reasonable
attempt to ascertain the assumed facts in order to give efficacy to that
report. This is particularly so if it is sought to charge those costs against
the other party on what really amounts to an almost agency of necessity basis: Fung
v. Berkun (1982), 36 B.C.L.R. 352 (S.C.) at para. 8;

4.         A "necessary"
disbursement is one which is essential to conduct the litigation. A
"proper" disbursement is one which is not necessary but is reasonably
incurred for the purpose of the proceeding: MacKenzie v. Darke, 2003
BCSC 138 at para. 18;

5.         When considering whether a
disbursement is proper, the correct viewpoint to be adopted by a taxing officer
is that of a sensible solicitor sitting in his chair and considering what, in
light of his then knowledge, is reasonable in the interests of his client: Francis
v. Francis and Dickerson, [1955] 3 All E.R. 837 at p. 840. Also, taxing
officers ought not to second guess a competent counsel doing a competent job,
solely on the grounds that other counsel might have been more sanguine or less
cautious in determining how the job ought to be done: MacKenzie v. Darke
at para. 7;

6.         Disbursements incurred based on
reasoning that is equivalent to "just in case" or "you never
know" will not be found to have been reasonably incurred, or to put it
another way, they will be found to be extravagant or the result of excessive
caution or zeal: Phelan v. Newcombe, 2007 BCSC 714; and

7.         A disbursement will be
disallowed when it appears that its only purpose is to shore up an
unsubstantiated claim: Dulay v. Sahl, [1990] B.C.J. No. 76 (S.C.).

[26]        
By early 2013, over four years after the July 28, 2008 accident and over
one and one-half years after the June 2, 2011 accident, the plaintiff had
returned to work. Discovery evidence questions and answers 50-52 are as
follows:

Q         All
right. Now, did you miss any time from work as a direct result of either the
2008 or 2011 motor vehicle accident?

A          Yes.
Only a couple days.

Q         And can
you tell me what month that was?

A          Not
sure of the month. It was around summertime.

Q         Of
which year?

A          It would have been 2009.

[27]        
While the plaintiff had missed additional work since 2009, that was not
as a consequence of the 2008 accident. He had other accidents and injuries
unrelated to the litigation.

[28]        
I appreciate the difficulties competent counsel have in endeavouring to
do the best job for their client. However, there was little possibility that this
plaintiff could have made a successful claim for loss of earning capacity
resulting from the motor vehicle accidents. Put another way, there was no
evidence that there would be a real and substantial possibility of a future
event leading to an income loss related to the injuries sustained in the motor
vehicle accidents.

[29]        
Engaging an occupational therapist to conduct a Functional Capacity
Evaluation and Cost of Future Care report must, as Master Bouck has written, be
premised on a thorough and reasonable attempt to ascertain the assumed facts in
order to give authenticity to that report, particularly “if it is sought to
charge [the] costs against the other party…”: Cooknell at para. 33.

[30]        
I am also aware of the wisdom of what Master Bouck has written in para.
36 of Cooknell:

[36]      It is a fine line to be
drawn between "second guessing" competent counsel and determining
that counsel acted with excessive zeal or extravagance in incurring the
impugned disbursements. On that question, I do not understand Master Horn’s
comments in MacKenzie v. Darke to mean that the registrar must defer to
counsel’s judgment on all matters and essentially issue a carte blanche to
incur disbursements at the ultimate cost to the defendants. Such an approach
goes against all of the well-established authorities and makes the assessment
process meaningless. Master Horn’s comments ought to be considered in their
context. The actual retention of an expert was not in issue in that assessment.
The issue was whether it was necessary or proper to retain a new expert
or stay with an expert who already provided an opinion with the latter choice
being more costly at the end of the day.

[31]        
Functional Capacity Evaluation reports cannot be done without reviewing
medical records and conducting at least some testing. By their very nature,
they involve significant expenditure of time by the preparer of the report, and
thus incurring of substantial cost. I have considered what Mr. Dick has deposed
in paragraph 11 of his affidavit.

[32]        
With respect to this particular case and this particular Functional
Capacity Evaluation and Cost of Future Care report, I can only echo what Master
Bouck concluded at para. 37 in Cooknell, where, upon consideration of
the evidence and “with an attempt to sit in that sensible solicitor’s chair”, I
find that it was neither proper nor necessary in the circumstances of this case
to retain an occupational therapist to prepare a Functional Capacity Evaluation
and Cost of Future Care report. There was no evidence that there would be a
real and substantial possibility of a future event leading to an income loss
resulting from the injuries this plaintiff sustained in the two motor vehicle
accidents. Accordingly, the disbursements for the Meridian Rehabilitation reports
are disallowed.

[33]        
The other disputed disbursement is for a report prepared by Robert
Carson, an economist. The report is entitled “Kirby Hayhurst – Cost of Future
Care” and is dated June 4, 2013.

[34]        
By the time that report was commissioned, the Functional Capacity
Evaluation and Cost of Future Care report had been prepared. It was provided to
Mr. Carson, and he utilized it in preparing his report. In addition, though,
Mr. Carson attaches as Table 2, a table which, as he states “may be used to
calculate the present value of any pattern of future annual cost of care which
may be incurred in this matter.”

[35]        
As Mr. Justice McEwan has written in Fairchild v. Vancouver Coastal
Health Authority, 2012 BCSC 1207, at para. 43:

[43]      …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.

[36]        
In his report, Dr. Borchert finds that the plaintiff’s symptoms would
improve over the next few months to two years post-report. He opines that the
plaintiff will likely require intermittent use of physiotherapy during that
time. He also discusses the plaintiff utilizing Naproxen and Tylenol #3 to be
used as needed.

[37]        
The cost of an economist’s report providing the court with present value
calculations where there is the potential for evidence of some future losses is
not something that is the result of extravagance, excessive caution or zeal.

[38]        
Much of Mr. Carson’s report deals with the Functional Capacity
Evaluation and Cost of Future Care report prepared. That portion of his report
which provides a table to calculate the present value of any pattern of future
annual costs is a proper disbursement.

[39]        
The account was rendered in the amount of $575.00. I allow $275.00 as a
reasonable disbursement.

SUMMARY

1.     The
Meridian Rehabilitation account of $4,875.00 is disallowed;

2.     The
Meridian Rehabilitation expert file review of $40.00 is disallowed; and

3.     The
Associated Economic Consultants report is reduced by $300.00 and allowed at $275.00,
plus applicable taxes.

[40]        
Costs were claimed at $6,500.00, excluding taxes and disbursements, in
accordance with Rule 15-1(15) of the Civil Rules. Additional costs can
be claimed where there are two actions. Here, the plaintiff claimed for one
bill of costs. The issues were succinctly argued. In these circumstances, it is
appropriate that the parties bear their own costs of this assessment.

“Master
R.W. McDiarmid”

MASTER McDIARMID