IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141127

Docket: M112840

Registry:
Vancouver

Between:

Frank Douglas
Thorogood

Plaintiff

And

Thomas Roberts and
Teresa Janet Roberts

Defendants

Before:
District Registrar Nielsen

Reasons for Decision

introduction

[1]            
This is an assessment of a bill of costs, arising out of a motor vehicle
accident which occurred on June 26, 2009, in North Vancouver, British Columbia.
The plaintiff was proceeding westbound on Marine Drive in the curb lane on his
motorcycle, when a motor vehicle driven by the defendant made a left-hand turn
in front of the plaintiff’s lane of travel. As a result, the plaintiff crashed
his motorcycle and sustained serious injuries, including a
fractured/dislocation of the right shoulder, a pain disorder, and symptoms of
depression.

[2]            
The plaintiff did not return to work following the accident.

[3]            
The trial of the action was scheduled to commence September 30, 2013 for
12 days. On September 19, 2013, the action was settled for $845,280.00 plus
taxable costs and disbursements.

[4]            
The parties have settled the issue of costs arising under the tariff and
many of the disbursements incurred. The remaining disbursements at issue are:

(i)             
Fax charges in the amount of $607.95;

(ii)            
Postage and Legal Alternative costs in the amount of $363.51;

(iii)           
Encore Claims Services in the amount of $379.50;

(iv)          
The medical-legal report of the plaintiff’s family physician, Dr. De
Marchi in the amount of $2,364.36;

(v)           
The report of Dr. Joy, psychologist, in the amount of $843.75;

(vi)          
The medical-legal report of Dr. Hunt, pain specialist, in the amount
of $5,440;

(vii)         
The medical-legal report of Dr. Gouws, occupational health
physician, and the report of Mr. Hosking, physiotherapist, of Ultima
Health Corporation, in the amounts of $4,062 and $3,612; and

(viii)       
The reports of Darren Benning, economist, of PETA Consultants in the
amount of $2,743.60 and $791.30.

legal principles

[5]            
The applicable legal principles that must be applied with respect to
disbursements are summarized in Turner v. Whittaker, 2013 BCSC 712 at para. 5,
wherein Master MacNaughton stated:

[5]        Counsel were also able to agree on the following
legal principles which are applicable on an assessment of disbursements:

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. (Fairchild v. British Columbia (Vancouver Coastal Health
Authority), 2012 BCSC 1207).

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. (Van
Daele v. Van Daele, 56 B.C.L.R. 176 (SC) rev’d 56 B.C.L.R. 178 at para. 4
(CA))

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. (McKenzie v. Darke, 2003 BCSC 138, para.
17-18)

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. (McKenzie
v. Darke, 2003 BCSC 138, para. 21).

[6]            
What follows is an assessment of those disbursements that are in
dispute, keeping in mind the applicable principles.

(i)             
Fax Charges

[7]            
The plaintiff claims $607.95 for the cost associated with sending faxes.
The amount of $607.95 is calculated on the basis of 1,737 copies at a rate of
35 cents per page, which is consistent with the “Registrar’s rate” prescribed
in Administrative Notice 5, issued May 1, 2010.

[8]            
The plaintiff did not provide evidence of why faxing was necessary. The
plaintiff also offers the 1,737 figure as an estimate of the amount of faxes.
The affidavit in support of the disbursement states:

The figure of 1,737 is an
estimate which amounts to approximately 34 pages per month of pages sent and
received by a fax. We do not record exactly how many pages we receive by fax,
however, it is common to receive records and correspondence by a fax.

[9]            
The defendants object to this disbursement on the basis that the figure
is an estimate and the “evidence is thin” in support of the disbursement.

[10]        
In Sovani v. Gin, 2006 BCSC 855, and Gill v. Widjaja, 2011
BCSC 1822, the court described the assessment of the reasonableness of
photocopying as not being an arithmetical exercise, but rather requiring a
consideration of what was reasonable in the circumstances of the action. I
intend to follow that approach in relation to the disbursement claimed for
faxes.

[11]        
In a case of this nature, given the amount of experts involved, the fact
that liability and quantum were in dispute, and the proximity to trial at the
time of settlement, I have no doubt that the plaintiff utilized correspondence
via fax. I further have no doubt that during the course of the litigation the
use of faxes would have been necessary and properly incurred. However, given
the lack of specific evidence as to why faxing was necessary, and the fact
there is no definitive proof of the amount of faxes involved, the amount
claimed for fax charges is reduced by half to $303.98.

(ii)           
Postage and Legal Alternative

[12]        
The plaintiff claims $363.51 for postage and Legal Alternative costs.
The figure of $363.51 is calculated on the basis of an estimated 777 letters
having been sent at a cost of 63 cents per letter.

[13]        
The affidavit in support of this disbursement attests that this is again
a best estimate, stating “Legal Alternative does not invoice us for their services
and we do not track our use of postage”.

[14]        
The defendants dispute this disbursement as being entirely speculative.

[15]        
Use of postage in a case of this nature will be inevitable, necessary
and proper. For the reasons given in relation to fax charges, I allow the
disbursement. However, given the lack of evidence concerning the precise amount
of letters sent and the cost of the postage incurred, the disbursement is again
reduced by half to $181.76 upon the same reasoning applied to the fax charges.

(iii)          
Encore Claim Services

[16]        
The plaintiff claims $1,179.50 for the service of Encore Claims, which
performed skip traces to locate two witnesses at the cost of $800, and a
further $379.50 to interview a liability witness.

[17]        
The defendants agree to the $800 disbursement in relation to locating of
the witnesses, but object to the $379.50 expended to interview the liability
witness. The defendants take the position that this is properly the work of the
lawyer.

[18]        
The costs associated with a private investigator who performs work
normally done by lawyers, such as interviewing witnesses, is normally not
allowed as a disbursement, unless it can be shown that there are special circumstances
justifying the use of a private investigator rather than a lawyer (see Noble
v. Wong (1982), 38 BCLR 246 (S.C.) at paras. 2-5 and Bell v.
Fantini (1981), 32 BCLR 322 (S.C.) at paras. 36-39).

[19]        
In support of the disbursement to have an independent third party
interview the liability witness, plaintiff’s counsel attests that it was
necessary to avoid the possibility of plaintiff’s counsel becoming a witness at
trial. If plaintiff’s counsel had interviewed the liability witness, and if his
evidence changed from his earlier statement, plaintiff’s counsel would be in
the awkward position of having been the only witness to the prior inconsistent
testimony.

[20]        
This, however, begs the question of whether another lawyer in the firm
was available to interview the liability witness in order to avoid the
potential problem identified. In the present circumstances, absent evidence in
this regard, the disbursement in the amount of $379.50 for the interviewing of
the liability witness is disallowed.

(iv)         
Dr. De Marchi

[21]        
The plaintiff seeks reimbursement of $2,364.36, being the cost of Dr. De
Marchi’s medical-legal report dated August 6, 2013. Dr. De Marchi is the
plaintiff’s general practitioner. The plaintiff saw Dr. De Marchi
regularly for a total of 59 visits between June 29, 2009 and August 6, 2013,
the date the report was prepared.

[22]        
In preparing his report, Dr. De Marchi reviewed over three years of
notes, investigations, reports, and outside material composed by other various health
providers.

[23]        
The defendants object to the report, arguing that it adds nothing to the
proceeding, particularly where there were half a dozen specialists who had
already voiced opinions on the plaintiff’s condition.

[24]        
The defendants submit that Dr. De Marchi was brought in at the last
minute, with the associated problem that his report was out of time pursuant to
Supreme Court Civil Rule 11-6(3). Further, the defendants submit the report of Dr. De
Marchi did no more than agree with the other experts who had already opined on
the various conditions of the plaintiff and was therefore duplicative and added
nothing.

[25]        
Plaintiff’s counsel did not allege the possibility of an adverse
inference being drawn due to the absence of a report from Dr. De Marchi.
In my view that possibility did not exist in the circumstances of this case (as
per Djukic v. Hahn, 2006 BCSC 154, at paragraph [60]).

[26]        
I have reviewed the report of Dr. De Marchi dated August 6, 2013,
and am of the view that at the time it was requested, it was neither necessary
nor properly incurred. There were reports of a psychiatrist, an orthopedic
specialist in shoulder injuries, a pain specialist, and an expert in physical
medicine and rehabilitation. If these various other experts had not been
retained, or if the possibility of an adverse inference existed, a report from
the family doctor may have been necessary and properly incurred, but absent the
possibility of an adverse inference, and given the vast array of other experts,
I agree with defence counsel and I disallow the $2,364.36 disbursement for the
report.

(v)           
Dr. Joy

[27]        
The plaintiff seeks reimbursement for the report of Dr. Joy dated
April 16, 2012, in the amount of $873.75. The plaintiff submits that as it was
alleged the accident caused anxiety and depression, the psychological report is
well-founded.

[28]        
Dr. Joy began seeing the plaintiff on July 14, 2011, for a total of
14 sessions. The plaintiff submits that as Dr. Joy saw the plaintiff over
a long period of time, he had a unique perspective compared to medical-legal
assessments which typically involve a single visit.

[29]        
The defendants object to the disbursement, taking issue with the fact
that, strictly speaking, it was not a medical-legal report as it did not
contain the certification required by Supreme Court Civil Rule 11-2(2).

[30]        
The defendants submit the report was a response to a request by Manulife
Financial relating to a collateral insurance claim, and not a medical-legal
report.

[31]        
The defendants also submit that the report of Dr. Joy was
duplicative, as there was already a report of Dr. Russell, a psychiatrist,
dated July 8, 2011, which diagnosed chronic pain and depression arising from
the accident.

[32]        
The defendants submit that the case of Farrokhmanesh v. Sahib,
2010 BCSC 497 at paras. 52 and 53 applies, wherein District Registrar
Sainty found that it was not necessary or proper to have both a psychiatrist
and a psychologist engage in providing opinions on the same subject matter.

[33]        
I am in agreement with defence counsel that the report is duplicative.
It was not necessary or properly incurred, and therefore the disbursement in
the amount of $843.75 is disallowed.

(vi)         
Dr. Hunt

[34]        
Dr. Hunt is a specialist in pain medicine, practising full-time in
this field for the last 20 years. He practices at the Pain Centre at St. Paul’s
Hospital. The plaintiff seeks reimbursement for the cost of his medical-legal
report dated February 20, 2012, in the amount of $5,440.

[35]        
The plaintiff submits that Dr. Hunt was retained because he
possesses the unique expertise as a chronic pain expert to opine on the
interplay between physical and psychological injury. The plaintiff acknowledges
that other experts had provided their opinions with respect to the physical and
psychological aspects of his injuries, but not both combined, nor from a
perspective of an expert who specializes in the treatment of people with
chronic pain disorder.

[36]        
The plaintiff submits that Dr. Hunt’s medical report was of
critical importance, as Dr. Hunt was qualified to give an opinion on the
treatment, prognosis, and overall level of disability associated with the
nature and degree of the plaintiff’s chronic pain. The plaintiff further
submits that Dr. Hunt’s expertise allowed him to comment on the interplay
of the plaintiff’s physical and psychological injuries while addressing the
issues of malingering, symptom magnification and psychogenic disorder, all of
which could have been raised in defence to the plaintiff’s chronic pain
condition.

[37]        
In further support of the disbursement, the plaintiff refers to the
decision of Arnason v. Nerio, 2014 BCSC 185, where Master Young awarded
the amount for Dr. Hunt’s bill in full, stating at para. 34:

[34]      There may not be a
recognized specialty for pain management, but Dr. Hunt undeniably has vast
experience in the “sub-specialty” and is known to this writer as a qualified
expert in the field. He assessed Mr. Arnason over the course of two days and
spent many hours reviewing the other records and writing his extensive medical
legal opinion letter. Having reviewed the extensive report, I am satisfied that
20 hours working on this assessment and report is reasonable, as is his hourly
rate charge of $300. I will allow this disbursement, plus the cost of the
plaintiff’s travel to Vancouver and his accommodation while attending this
examination.

[38]        
The defendants argue the report is duplicative and adds nothing to the
opinions of the other experts, as chronic pain was diagnosed by Dr. Reagan,
an orthopedic specialist, in his report of November 9, 2011; Dr. O’Connor,
a physiatrist, in his report dated September 29, 2011; Dr. Gouws, an
occupational health physician, in his report dated September 26, 2011; and Dr. Russell,
a psychiatrist, in his report dated July 8, 2011.

[39]        
The defendants further question the value of Dr. Hunt’s report,
given the fact that it was obtained late in the day, and the reports of other
key specialists were not shown to Dr. Hunt, such as the report of Dr. O’Connor
and the clinical records of Dr. De Marchi.

[40]        
The relative value and weight given to Dr. Hunt’s report would have
been within the exclusive purview of the trial judge. The question for me is
whether the report was “necessarily or properly incurred in the conduct of the
proceeding” and, if so, “to allow a reasonable amount for that disbursement” in
accordance with Supreme Court Civil Rule 14-1(5).

[41]        
I agree with defence counsel that there is overlap with the report of Dr. Hunt,
insofar as the other experts referred to pain, in addition to their other
diagnoses within their specific areas of expertise. However, the fact that other
experts referred to pain as part of their diagnosis within their respective
areas of expertise, does not necessarily equate with duplication and
redundancy.

[42]        
In the present case, the plaintiff’s condition had plateaued. Counsel
for the plaintiff was faced with various pain-related diagnoses and the
possibility that the plaintiff would never be able to return to work as a
result. The stakes were at their highest and “pain” was forefront.

[43]        
As Master Young said in Arnason, supra, at para. 34,
“there may not be a recognized specialty for pain management, but Dr. Hunt
undeniably has vast experience in the sub-specialty and is known … as a
qualified expert in the field”.

[44]        
In the circumstances, I am satisfied that the report of Dr. Hunt
was reasonably and properly incurred for the purposes of proving the
plaintiff’s case. The disbursement in the amount of $5,440 is allowed in full.

(vii)        
Dr. Gouws and Mr. Hosking

[45]        
The plaintiff seeks recovery of disbursements in the amount of $4,062
for the medical-legal report of Dr. Gouws, an occupational health
physician, specializing in occupational fitness evaluations, dated September
26, 2011, and the report of Mr. Hosking, dated May 9, 2013, a
physiotherapist, who performed a functional capacity evaluation of the
plaintiff, in the amount of $3,612.

[46]        
The plaintiff submits that Dr. Gouw’s report was necessary and
properly incurred as he is an occupational health physician who specializes in
occupational fitness evaluations, and has done so for the last 19 years of his
medical practice. The plaintiff submits that Dr. Gouws’ report provides a
medical opinion concerning the plaintiff’s degree of functional impairment and
prognosis with respect to his ability to return to his former place of work. As
a result, his evidence would have been important at trial and was, in fact,
useful during settlement negotiations.

[47]        
In his initial report, Dr. Gouws opined that the plaintiff had not
yet reached his maximum level of recovery and made treatment recommendations
for improvement in the plaintiff’s condition. As a result, the plaintiff
obtained a second report from Dr. Gouws, dated July 2, 2013.

[48]        
The defendants do not take issue with the second report of Dr. Gouws
dated July 2, 2013, or the assessment of June 10, 2013. The defendants take
issue with Dr. Gouws’ initial report dated September 26, 2011, on the
basis that it was prepared too soon in the proceeding, as Dr. Gouws’
opinion was that the plaintiff had not reached a point of maximum medical
improvement and had a chronic pain condition that had not been adequately
addressed.

[49]        
The defendants object to Mr. Hosking’s report on the basis that it
was unnecessary, given that Dr. Gouws’ report involved a full interview
and physical examination. The defendants take the position that it is an
either/or situation, but not both. The defendants object to the fact that the
three reports, in total, exceeded $10,000.

[50]        
I agree with the defendants that, with the benefit of hindsight, Dr. Gouws’
report of September 26, 2011, occurred too early in the proceeding. However,
without the occupational report of Dr. Gouws early on, there may have been
the possibility that the defendants could have raised mitigation arguments,
suggesting the plaintiff was capable of working in other fields. Further, the
time for assessing whether a disbursement was necessarily or properly incurred,
is when the disbursement was incurred, not with the benefit of hindsight (Van
Daele v. Daele, 56 BCLR 176 (S.C.) rev’d 56 BCLR 178 at para. 4
(C.A.)).

[51]        
At the time Dr. Gouws’ opinion was sought, it was reasonable to do
so, and the disbursement was properly incurred.

[52]        
The disbursement in the amount of $4,062 is allowed in full.

[53]        
I agree that Dr. Gouws performed a full physical examination of the
plaintiff. However, the functional capacity evaluation of the plaintiff by Mr. Hosking,
a physiotherapist, was also reasonable in the circumstances. The plaintiff had
to overcome arguments in relation to his residual capacity and employability. A
mixed approach to assessment was reasonable and proper, given the plaintiff’s
position in the proceeding, that he was incapable to returning to his prior
employment and had limited employability, if any.

[54]        
The disbursement in the amount of $3,612 is allowed in full.

(viii)      
Darren Benning

[55]        
The plaintiff submits that his wage loss and future care claims arising
from the accident were substantial, complex, and required the expertise of an
economist to quantify. As a result, the plaintiff retained Darren Benning of
PETA Consultants to provide expert evidence to assess these losses. The
plaintiff obtained reports from PETA Consultants dated February 28, 2013; March
5, 2013; July 4, 2013; and July 5, 2013.

[56]        
The defendants do not object to these reports.

[57]        
The defendants take issue with the addendum reports dated August 14,
2013, August 15, 2013, September 3, 2013, and September 4, 2013, costing a
total of $3,535.40, comprising two invoices of $2,743.60 and $791.80.

[58]        
The need for the addendum reports arose from the fact that prior to
August 2013, the plaintiff believed his maximum pension would have been
achieved at age 65. In August 2013, it was discovered by the plaintiff that his
maximum pension entitlement would not be achieved until he reached the age of
67.4 years, not 65.

[59]        
All the prior reports were based upon calculations assuming the maximum
pension entitlement at age 65.

[60]        
The defendants object to the reports on two bases: first, all the
addendum reports were out of time and potentially inadmissible. Second, the
additional reports were the fault of the plaintiff, who was in possession of
the correct information with respect to his maximum retirement date, but failed
to provide the correct information to the economist.

[61]        
The defendants submit that had the plaintiff provided the correct
information to the economist in the first place, the addendum reports would
have been unnecessary.

[62]        
The fact that the addendum reports were late does not impact on their
necessity or propriety. The trial judge would have the discretion to admit the
reports, regardless of their being served out of time. However, I find the
addendum reports were not necessarily or properly incurred in the conduct of
the proceeding, as they were the result of the plaintiff’s own error in
providing the incorrect factual underpinning for the original reports.

[63]        
The correct factual information was in the plaintiff’s possession, or
reasonably available to him. The cost of the plaintiff initially providing
incorrect information to the economist, necessitating the creation of addendum
reports, ought not to be borne by the defendants. The cost of the addendum
reports is disallowed.

[64]        
Were taxes are applicable to the disbursements allowed, they are
awarded.

[65]        
If the parties require a certificate they may submit one through the
Registry with the endorsement of counsel confirming the amount.

“District
Registrar Nielsen”