IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151218

Docket: M101934

Registry:
Vancouver

Between:

Xiaoqi Li also
known as Angel Li,
an infant by her litigation guardian, Yanping Wu

Plaintiff

And

Boyce Charles
Giesinger also known as
Boyce Charles Kelly Giesinger

Defendant

Before:
Master Harper (as Registrar)

Reasons for Decision

introduction

[1]            
This is an assessment of the plaintiff’s bill of costs arising out of
her claim for damages for personal injuries sustained when she was struck by
the defendant’s vehicle while riding her bicycle across a crosswalk in Prince
George, B.C. on October 6, 2007.

[2]            
At the time of the accident, the plaintiff (usually called “Angel” in
the proceedings) was eight years old and living with her parents in Prince
George while her father was working on a temporary assignment at the University
of Northern British Columbia. The family is from Harbin, China, a city of ten
million people close to the Russian border.

[3]            
The trial was originally scheduled to commence April 10, 2012 for
19 days, but was adjourned after an agreement was reached that liability would
be admitted in exchange for a cap on damages of the policy limits of
$2,000,000. A new trial was scheduled to commence June 15, 2015.

[4]            
The claim was settled in May, 2015 for the sum of $800,000 plus costs to
be assessed, subject to the approval of the Public Guardian and Trustee of British
Columbia (“PGT”) and the court. The PGT has not yet approved the settlement as
it wishes to see what amount is allowed for costs and disbursements. The
litigation guardian is Angel’s father. A Part 7 action is ongoing.

BACKGROUND

[5]            
Angel sustained multiple injuries including a concussion (mild traumatic
brain injury); fractures to her right leg and ankle, sacrum and pelvis; vaginal
tearing and psychological injuries. She was in hospital in Prince George until October 23,
2007. The family was scheduled to return to China at the end of December, 2007
and did so. The psychological effects of the scarring resulting from Angel’s
injuries were not evident until about five or six years post-accident.

[6]            
After the family returned to China, Angel and her parents returned to
British Columbia on several occasions for the purpose of Angel undergoing
medical assessments. Many medical professionals followed Angel’s progress over
the years. The cost of travel and the multiple assessments was high.

THE BILL OF COSTS

[7]            
The bill of costs as presented includes 137 units for tariff items for a
total of $15,070 before taxes, and $174,736.25 including taxes for
disbursements. In addition, the defendant, through its insurer, the Insurance Corporation
of British Columbia (“ICBC”), has reimbursed plaintiff’s counsel for medical
reports and related travel expenses.

[8]            
There are relatively minor disagreements between the parties on the
tariff items. The real dispute is about disbursements. The plaintiff’s total
disbursements, including disbursements that have been reimbursed by ICBC are
$202,450.75.

[9]            
The defendant disputes several disbursements that appear on the bill of
costs and also seeks an overall reduction on account of disbursements that ICBC
previously paid on his behalf (that do not appear on the bill of costs), but
which he says would not be recoverable on an assessment.

[10]        
It is trite law that the plaintiff, through her litigation guardian, bears
the onus of justifying her bill.

TARIFF ITEMS

Item 1: Correspondence,
conferences, instructions, investigations or negotiations by a party until the
start of the proceeding, for which provision is not made elsewhere in this
tariff.

[11]        
The range is 1-10 units. The plaintiff claims 8 units and the defendant
proposes 4 units. Counsel for the plaintiff was retained shortly after the
accident. Considerable work was performed until the action was commenced April 28,
2010. I allow 7 units.

Item 2: Correspondence,
conferences, instructions, investigations or negotiations by a party after the
start of the proceeding to the completion of the trial or hearing, for which
provision is not made elsewhere in this tariff

[12]        
The range is 1-30 units. The plaintiff claims 25 units and the defendant
proposes 20 units. The litigation was ongoing for 63 months until settlement
was reached. The plaintiff was an infant and she lived in China which
complicated matters. I allow 25 units.

Item 6: All process, for which
provision is not made elsewhere in this tariff, for commencing and prosecuting
a proceeding

[13]        
The range is 1-10 units. The plaintiff claims 6 units. The defendant
proposes 3 units as being the “normal” allowance for pleadings that are not
complex. The pleadings here are straightforward, except for the provision of a
litigation guardian which justifies a slight increase above 3 units. I allow
4 units.

Item 11: Process for giving
discovery and inspection of documents (1 to 999 documents)

[14]        
The plaintiff claims 7 units and the defendant proposes 4 units. There
were 93 pages of documents produced including school records from China that
had to be translated. The range is 1-10 units. The mid-range is appropriate and
I allow 5 units.

Item 17: All process and
correspondence associated with retaining and consulting all experts for the
purposes of obtaining opinions for use in the proceeding

[15]        
The range is 1-10 units. The plaintiff claims 10 units and the defendant
proposes 6-9 units. Plaintiff’s counsel consulted with and obtained expert
reports from thirteen different doctors and other experts:  Dr. Beauchamp,
pediatric orthopedic surgeon; Dr. Lu psychiatrist; Dr. Wong,
neurologist; Dr. Chu, physiatrist; Dr. Woo,
obstetrician/gynecologist; Dr. Kessler; plastic surgeon, Dr. Smith,
child psychiatrist; Dr. Lee, neuropsychologist; Alex Jackson, vocational
expert; Louise Craig, occupational therapist; Andrew Hosking, physiotherapist;
Doug Hildebrand, economist; and Prof. Bailey, cultural expert.

[16]        
The maximum number of units should be reserved for the most complex
case. As this is not the most complex case, and some of the disbursements for
medical reports were unnecessary or improper as seen below, I allow 7
units.

Item 18: All process and
correspondence associated with contacting, interviewing and issuing subpoenas
to all witnesses

[17]        
The range is 1-10 units. The plaintiff claims 10 units. The defendant’s
position is that the units allowed should be very low if the disbursement for
the initial investigation (DL Adjusters) is allowed. If that disbursement is
disallowed, the defendant’s position is that 5-6 units should be allowed. As will
be seen below, I have allowed part of the DL Adjuster’s fee as a
disbursement. I therefore allow 5 units.

Items 21 and 22: Preparation for
and attendance at the application to appoint the litigation guardian and
application to adjourn the first trial (both unopposed)

[18]        
The plaintiff claims 4 and 8 units for Items 21 and 22 respectively, but
since each application was less than half a day, the appropriate number of
units is 2 and 4 respectively. I allow 2 and 4 units.

Item 33: All process for
obtaining the comments and recommendations of the Public Guardian and Trustee

[19]        
The range is 1-20 units. The plaintiff claims 5 units. Plaintiff’s
counsel prepared an 11-page submission outlining the plaintiff’s case and
requesting their comments and approval. Although the approval has not yet
occurred, it would not be practical to adjourn this part of the assessment.
I find that 5 units are appropriate given the amount of work involved.

[20]        
Summary of tariff items: I allow a total of 118 units at $110 per
unit for a total of $12,980 plus tax.

DISBURSEMENTS

[21]        
The legal principles that apply to an assessment of disbursements are
well-known. Rule 14-1(5) requires the registrar to determine which
disbursements have been necessarily or properly incurred and allow a reasonable
amount for those disbursements.

[22]        
The onus is on the plaintiff to justify the disbursement.

[23]        
The following principles apply:

a)    a necessary
disbursement is one which is essential to conduct the litigation;

b)    a proper
disbursement is one which is not necessary but is reasonably incurred for the
purpose of the proceeding;

c)     whether a
disbursement is proper is to be considered at the time the disbursement is
about to be incurred based on the knowledge of a sensible solicitor and not
with the benefit of hindsight;

d)    disbursements
that are incurred “just in case” are not reasonable;

e)    a disbursement
will be disallowed if it is extravagant or borne of excessive caution or zeal
as judged at the time the disbursement is incurred;

f)      expenses
must be proportional to the claim;

g)    the party
commissioning an expert opinion must make a thorough and reasonable attempt to
ascertain the assumed facts underlying the opinion;

h)    a disbursement
will be disallowed when it appears that its only purpose is to shore up an
unsubstantiated claim; and

i)       the
role of an assessing officer is not to second guess competent counsel doing a
competent job solely because other counsel might have handled the matter
differently.

See Turner v. Whittaker, 2013 BCSC 712; Salsman
v. Planes, 2014 BCSC 45; Cooknell v. Quinn, 2013 BCSC
1653.

[24]        
Counsel for the plaintiff submits that the assessment should proceed on
the basis that the case was complex, with many twists and turns. He says that
he relied on the advice of the experts when considering whether to request
medical assessments and reports and, therefore, the expenses were proper.

[25]        
One factor that has no application on this assessment is whether a
disbursement has been incurred due to negligence. On the contrary, counsel for
the plaintiff in this case was thorough and diligent in his approach to
advancing his client’s case. I hasten to add that the defence did not
argue that any of the disbursements were incurred due to negligence.

[26]        
The general position of the defendant in this case is similar to that
taken by the defendant in Salsman at para. 28:

[28]      The defence challenges
the necessity and propriety of some disbursements on the basis that plaintiff’s
counsel was overzealous in directing various medical-related investigations and
extravagant in commissioning reports.

Speed Scene

[27]        
Plaintiff’s counsel retained the services of Speed Scene to travel to
Prince George to do a detailed scene investigation. The fee was $3,131.27. Counsel
took the view that the scene had to be preserved. He was concerned that because
Angel was riding her bicycle through a cross-walk (which is illegal), she might
be held contributorily negligent.

[28]        
Counsel for the defendant argues that the expense was unnecessary, that
the intersection was not unusual and that although liability was initially
denied, it should have been obvious that the defendant, having gone through a
red light, was liable for the accident. He argues further that a scene
investigation is commissioned in a minority of cases where the exact dimensions
of the accident scene are important. I find that it was reasonable for
counsel for the plaintiff not to take liability for granted. However, the
liability issues did not reasonably require a scene investigation. Plaintiff’s
counsel acted out of excessive caution. It is not reasonable to expect the
unsuccessful party to bear this expense. I find that the disbursement was
not necessary or proper and I disallow it.

DL Adjusters

[29]        
Plaintiff’s counsel retained an independent adjuster to travel from
Vancouver to Prince George to interview accident witnesses, the attending
police officer and Angel’s teachers. Plaintiff’s counsel was familiar with the
investigator’s work and trusted him to do a good job. The adjuster billed 66.10
hours at $105 per hour plus expenses. The total fees were $8,378.02. Defence
counsel argues that plaintiff’s counsel did not take other steps to establish
liability. He argues that the plaintiff had a “slam dunk” case on liability. He
cites Asham v. Forsythe, [1998] B.C.J. No. 45 at paras.
10 to 15 (S.C.) in which a private investigator’s fees incurred for taking
statements from witnesses were disallowed on the basis that plaintiff’s counsel
could have obtained the police file which had enough information to establish
liability.

[30]        
Defence counsel submits that plaintiff’s counsel could have obtained the
defendant’s statement through a Freedom of Information request of ICBC and
further that the ticket given to the defendant which he did not dispute was
prima facie evidence that he acted with undue care. He says that the DL
Adjusters account is a “just in case” type of disbursement.

[31]        
Further, he submits that the adjuster’s meeting with Angel and her
family was unnecessary, and that plaintiff’s counsel could have retained an investigator
in Prince George instead of flying one in from Vancouver: see Franzman v.
Munro, 2013 BCSC 1758 at paras. 104 – 106.

[32]        
Finally, counsel for the defendant argues that if the fees are not
disallowed in their entirety, a portion should be deducted.

[33]        
In my view, plaintiff’s counsel had to take the denial of liability at
face value no matter how strong a case the plaintiff had. The possibility of
contributory negligence was a real one and not to be dismissed lightly. It was
reasonable for counsel to use the services of an investigator to interview
witnesses to the accident. It was also reasonable to interview Angel’s teachers
to see if there were any immediate effects of the brain injury on Angel’s
school performance. However, although it might have been subjectively
reasonable for counsel to retain the services of an adjuster whose work he was
familiar with and charge the disbursement to his client (including significant
travel expenses and time recorded for travelling), it is not reasonable for the
opposing party to have to pay for the extra expenses of using an out-of-town
adjuster. Counsel for the plaintiff could have retained an adjuster in Prince
George and if he needed a referral, he could have made inquiries of his
colleagues in the area.

[34]        
In my view, the total witness interviews could have been concluded in 30
hours. I, therefore, allow $3,150 plus taxes. I disallow all travel
expenses. There are some allowable disbursements such as photographs and long
distance charges. These are relatively minor and I allow the disbursements
at $100.

Reports previously reimbursed by
ICBC

[35]        
An unusual aspect of this assessment is the defendant’s submission that
some of the disbursements for medical reports previously reimbursed by ICBC and
therefore do not appear on the bill of costs should be deducted from the bill
of costs on the basis that those disbursements were not necessarily or properly
incurred. No case authority was provided that addresses this proposition.

[36]        
There was no prior agreement with ICBC that the expenses, once paid,
could be revisited. I do not think it is fair, without a prior agreement
between the parties, to allow the defendant to claim an offset on an assessment
of a bill of costs for expenses it has previously paid on the basis that they were
not properly recoverable as disbursements.

[37]        
It would be a simple matter for the payor, when asked to pay for a
report in exchange for receiving the report to propose terms along the lines
of:

the payment by the defendant or
its insurer of this disbursement is without prejudice to the defendant’s right
to dispute the disbursement on an assessment of the plaintiff’s bill of costs.

[38]        
The plaintiff could then choose to accept or reject the terms. If the
plaintiff accepted the terms, and gave the defendant the report in exchange for
reimbursement, then the disbursement would be included in the plaintiff’s bill
of costs to be assessed pursuant to the requirements of Rule 14-1(5) just like
any other disbursement on the basis of necessity, propriety and reasonableness.

[39]        
Therefore, I do not accede to the defendant’s argument that any
disbursements paid by the defendant or on his behalf be assessed. The
previously-reimbursed reports, however, are relevant in the context of
analyzing whether further assessments and reports were necessary or proper.

Overview of medical assessments
and reports and related travel expenses

[40]        
I now turn to the medical assessments and reports and related travel
expenses.

[41]        
From the plaintiff’s point of view, all the medical assessments were conducted
on the recommendation of other medical professionals. The multiple
recommendations produced a snowball effect and a large number of expert
assessments and reports. A question that arises on the review of the
disbursements related to medical reports is whether the fact that medical
assessments are recommended leads inevitably to a finding that the reports were
necessary or proper.

[42]        
An overview of Angel’s course of recovery post-accident will put the
disbursements claimed in perspective.

[43]        
Angel and her family returned to their home in Harbin, China at the end
of December, 2007. The plate in her leg broke in 2008 requiring surgery which
was done in Harbin. She underwent post-surgical rehabilitation from April to
June, 2008. She then had the plate and screws removed in March 2009. Angel
had no other medical treatment in China. She had no counselling.

[44]        
Angel did very well at school following the accident until she was about
age 14 and in Grade 10. At that time, her marks plummeted. It is common ground
that this dramatic decline in academic achievement was due to psychological
reasons, rather than her physical injuries. The scarring caused teasing and a
lack of self-esteem. If Angel could not get into university due to low high
school marks, her loss of earning capacity would be significant.

[45]        
An incidental benign epidermoid cyst, unrelated to the accident, was
discovered on Angel’s skull by means of an MRI conducted as part of this
litigation. She had surgery in China to remove the cyst.

[46]        
A complicating feature of the claim and of the assessment of costs is
that the assessment of her injuries was arranged almost entirely through her
legal counsel and provided by doctors and other medical experts paid for by his
law firm. Normally, an injured plaintiff’s medical care is handled by his or
her primary care physician, and, if necessary, by treating specialists on
referral from the family doctor, and not by a privately-financed medical
expert. In the normal course, the expenses for medical treatment do not show up
on a plaintiff’s bill of costs: those expenses are either paid for out of the
public health care system or, if paid for by the plaintiff or her counsel, are
claimed as special damages.

[47]        
In this case, Angel had no Medical Services Plan coverage beyond December 31,
2007 and no regular medical care in China. Her only medical care in China for
her accident-related injuries was surgery in 2008 after she re-fractured her
leg. Counsel for Angel submits that the medical care in China was inadequate
and, therefore, it was reasonable for Angel to have all her medical assessments
done in Canada (and in Hong Kong for neuropsychological assessments). An issue
that arises on this assessment, therefore, in addition to the issue of whether
all the medical expenses are recoverable as disbursements necessarily or
properly incurred for litigation purposes is whether any of those expenses fall
under the category of medical treatment. In other words, was the disbursement
reasonably incurred to prove the claim (recoverable), or was it incurred solely
for medical treatment (not recoverable), or was it incurred for both a
litigation and medical purpose (possibly recoverable)?  The lines between all
the types of medical legal expenses can be blurry.

Dr. Beauchamp’s assessments
and reports in 2008 and 2009

[48]        
Dr. Beauchamp is a pediatric orthopedic surgeon.

[49]        
He assessed Angel five times and produced six reports. The assessments
were done in 2007, 2008, 2009, 2010 and 2015. The report done in November 2007
was previously paid for by ICBC and is not disputed. The reports done in 2010
and 2015 are not disputed. Defence counsel submits that these reports were
adequate and the 2008 and 2009 assessments and reports were unnecessary.

[50]        
Plaintiff’s counsel felt an early assessment of the plaintiff’s orthopedic
injuries would provide expert recommendations for the plaintiff’s treatment and
care and a baseline from which to assess her recovery. Dr. Beauchamp
recommended yearly monitoring of the leg length discrepancy. Plaintiff’s
counsel says he had no reason to questions this recommendation. Counsel for the
defendant argues that the monitoring did not have to be done by Dr. Beauchamp
himself, but could have been done in China.

[51]        
Dr. Beauchamp provided a letter explaining the rationale for the
annual physical examination and leg length measurements. The letter focuses on
the clinical reasons for the assessments. For instance, Dr. Beauchamp says
that conducting the CT leg length measurements “will allow me to project the
anticipated discrepancy at skeletal maturity and discuss realistically with the
attending parent as to specific interventions that may or may not need to be
followed.” Dr. Beauchamp recommended that the leg length measurements be
conducted in the same facility for consistency.

[52]        
It is apparent from Dr. Beauchamp’s letter that the assessments
were done for medical reasons and not just for litigation purposes. Since the
first leg length measurements were done by him, it did make sense for the
subsequent measurements to be done by him. I find that the 2008 and 2009
assessments had a dual purpose. If Dr. Beauchamp were going to give
evidence at trial, he would have to be able to speak to the leg length issue. It
was appropriate for Dr. Beauchamp to assess Angel in 2008 and 2009, but it
was not strictly necessary to obtain a report for each of those occasions
because there was no impending trial date. Obtaining reports was, however, reasonable
and therefore proper in light of my findings below concerning Dr. Chu’s
assessments and reports.

[53]        
I allow the disbursements for Dr. Beauchamp’s assessments and
reports for 2008 and 2009.

[54]        
It follows that I allow the interpreter’s fees for the assessments
by Dr. Beauchamp.

[55]        
I will deal with the travel expenses in a later section of these
reasons.

Dr. Chu’s assessments,
reports and translation services in 2008, 2010 and 2015

[56]        
Dr. Chu is a physiatrist.

[57]        
He saw Angel in December, 2007; September, 2008; August, 2010; and
February, 2015. Plaintiff’s counsel deposes: “due to the multiple
trauma-related injuries sustained by the plaintiff, I felt a physiatrist
would be best to assess the plaintiff and provide recommendations for her
rehabilitation.”

[58]        
ICBC paid for Dr. Chu’s first report in 2007, and for the reasons
previously given concerning disbursements previously paid by ICBC, that
disbursement will not be revisited. However, the necessity and propriety of
that assessment needs to be evaluated because the bill of costs lists an unpaid
travel expense claim related to it.

[59]        
Dr. Chu examined Angel on December 7, 2007, shortly before the family
was to return to China. It was reasonable to obtain an opinion of a physiatrist
at this stage of Angel’s recovery and if the 2007 report had not already been
paid for by ICBC, I would have allowed it. It follows that the cost of travelling
to the appointment will be allowed, subject to the limitation on travel expense
claims that is addressed in a later section of these reasons.

[60]        
The issue now becomes whether Dr. Chu’s continued involvement
beyond 2007 duplicated the role of other specialists, particularly Drs.
Beauchamp and Wong. If so, Dr. Chu’s involvement was unnecessary and not
reasonably incurred for the purpose of the proceeding.

[61]        
In Farrokhmanesh v. Sahib, 2010 BCSC 1797, counsel
for the plaintiff retained both a psychologist and a psychiatrist. The
registrar disallowed the disbursement for the psychologist’s fees as there was
no reason to have the plaintiff assessed by both a psychiatrist and a
psychologist. The decision was upheld on appeal.

[62]        
In Varga v. Shin, 2012 BCSC 1643, the registrar found that there
was insufficient evidence before her to hold that the expense of retaining both
a physiatrist and an orthopedic surgeon was reasonable and the cost of the
physiatrist was disallowed.

[63]        
Dr. Chu provided a letter responding to counsel’s request that he
justify why his consults were reasonable and necessary. Dr. Chu admits:

There certainly could be some
overlap with what Dr. Beauchamp and Dr. Wong provided in their
reports, but if she were seen outside of the medical/legal realm and was just
seen for medical purposes, it is very common to have an orthopaedic surgeon, a
neurologist, and a physiatrist involved in the care of multi-trauma patients
such as Ms. Li.

[64]        
Dr. Chu goes on to say that the neurologist and orthopedic surgeon would
probably be involved in the acute care stage,

…but then afterwards, once all
the acute injuries are healed as best they can, comes the rehabilitation part,
which is where the physiatrist comes in. It would seem self-serving to try and
justify what I do as a physiatrist in seeing people for medical/legal
opinions and recommendations but it is common to have a multi-disciplinary care
for complicated trauma patients such as Ms. Li.

[65]        
Dr. Chu’s explanation of the role of the various specialists in a
medical treatment context appears eminently reasonable. However, in a medical-legal
context, where no treatment is being provided by the physiatrist, the reasonableness
of a requirement that the opposing party pay for multiple assessments and
reports from multiple experts involves a different analysis: an analysis that
has to do with whether incurring the disbursement was necessary or proper at
the time it was incurred. At the time the disbursements for Dr. Chu’s
assessments were being incurred, Angel was being assessed by other specialists.

[66]        
Applying the principles set out in Farrokhmanesh and Varga,
I find that, apart from the first assessment, it was not necessary or
proper to retain Dr. Chu to conduct further assessments as the relevant
medical issues were already being dealt with by other doctors.

[67]        
The decision to commission subsequent assessments and reports from Dr. Chu
was extravagant or borne of excessive caution. Therefore, I disallow Dr. Chu’s
fees for the assessments and reports for 2008, 2010 and 2015 and related interpreter’s
fees.

Dr. Wong’s assessments and
reports

[68]        
There is some confusion in the parties’ respective positions concerning Dr. Wong’s
assessments and reports. Dr. Wong assessed Angel four times:  in 2008,
2009, 2010 and 2015 and wrote five reports. Two of the five reports emanated
from the assessment in 2008. ICBC reimbursed plaintiff’s counsel for the two
reports done in 2008 and the one report done in 2009.

[69]        
The defence disputes the assessments and reports in 2008 and 2009 as
being unnecessary. For the reasons given earlier, those reports will not be
assessed and the defendant is not entitled to credit for the amounts paid for
those reports.

[70]        
The confusion arises because the disbursement for the 2010 assessment
and report does not appear on the plaintiff’s bill of costs even though ICBC
did not pay for it. The bill of costs was not amended to claim any disbursement
for a 2010 assessment or report. Therefore, I have not assessed the
necessity or propriety of the 2010 assessment and report.

[71]        
If the 2010 assessment and report had been included in the bill of
costs, I would have disallowed the cost of that assessment and report as
being unnecessary and improper in that the litigation purpose for the
assessment and report was minimal. Of note is Dr. Wong’s advice to Angel’s
parents about the cyst. Advice to a patient, or in this case, the patient’s
parents, indicates a medical purpose for the assessment and not a medical legal
purpose. On balance, therefore, the plaintiff has not met the onus of
justifying the disbursement as being recoverable from the defendant.

[72]        
The assessment and report done in 2015 were proper because they were
done in anticipation of trial. I allow the disbursement for Dr. Wong’s
fees for the 2015 assessment and report.

MRIs of the brain in 2010 and 2015

[73]        
MRIs done in 2007 of the brain, lumbar spine, sacrum and pelvis are not
disputed. The two MRIs of the brain done in 2010 and 2015 are disputed on the
basis they were not medically indicated for any reason related to the injuries
sustained in the accident. The MRIs were done because of an unrelated benign
cyst. Counsel for the plaintiff justifies the MRIs in dispute by saying that
they were obtained to counter a potential defence argument of a negative
contingency, thus obtained for a litigation purpose. However, in my view, if
the defence were going to raise an issue that the benign cyst might lower the
damages, then the defence would have followed up with their own MRI which they
did not.

[74]        
Counsel for the plaintiff further argues the MRIs contributed to
settlement.

[75]        
The plaintiff relies on Wu v. Ly, 2013 BCSC
1419 to justify the claim for the MRIs. In that case, the registrar held that
the MRI was for both medical and litigation purposes and allowed the
disbursement.

[76]        
 In Wu, the court refers to Colasimone v. Ng,
2007 BCSC 1179 which was an appeal of a registrar’s decision allowing
the cost of an MRI as a recoverable disbursement. At para. 21 in Colasimone,
Gropper, J. cites the decision of Registrar Blok (as he then was) in Ward
v. W.S. Lessing Ltd., 2007 BCSC 877, saying Registrar Blok had considered the
special problem of MRIs. At paras. 11 and 14 in Ward:

[11]      … If an MRI was performed for the purpose of
treatment, then it may be claimed as an item of special damages. If it is used
as an aid in the litigation process, then it is properly claimed as a
disbursement on a party and party bill of costs. Those are the typical
questions that are dealt with when MRIs are at issue.

[14]      … there must be some
judgment applied, perhaps with medical input, in considering the necessity for
the procedure in a litigation context, given the injuries involved, the likely
damages, what the MRI is expected to achieve from a litigation standpoint and
so on.

[77]        
In the present case, there was medical input into the decision to obtain
the two MRIs. In fact, Dr. Wong recommended them. In response, counsel for
the defendant argues that Dr. Wong’s recommendation was not sound and that
counsel cannot abdicate to the medical profession the management of medical
legal expenses. As Registrar Blok (as he then was) said in Phelan v.
Newcombe, 2007 BCSC 714 at para. 17:

[17]      … the mere fact that a
physician has recommended that an MRI scan be done will not guarantee its
recovery as a disbursement. For the most part, diagnostic imaging will be a
medical matter (and any private medical costs would fall under special damages)
and its role as an aid in litigation will be relatively narrow.

[78]        
It is the solicitor, not the expert, who knows what is needed to
properly present the case: Bereti v. Schuette, [1980]
B.C.J. No. 802 at para. 18.

[79]        
Here, counsel for the plaintiff commissioned the two disputed MRIs on
the recommendation of Dr. Wong. It may be that Dr. Wong’s reasoning
turned out to be flawed, and would not have been accepted by the trial judge,
but I cannot fault counsel for the plaintiff for following the advice at
the time the disbursement was incurred.

[80]        
I find that the MRIs were commissioned for both medical and litigation
purposes. They do not fall strictly under the category of private medical costs
that should be claimed as special damages.

[81]        
I allow the disbursements for both MRIs.

Dr. Lee’s assessments in
2009, 2010 and 2015

[82]        
Dr. Lee is a neuropsychologist based in Hong Kong.

[83]        
She conducted neuropsychological assessments of Angel in February, 2009;
February 2010; and March, 2015. The total fees for the three assessments
are about $44,000 in Canadian dollars.

[84]        
Counsel for the plaintiff submits that China does not have psychologists
who treat children with Angel’s psychological difficulties. He did not know any
psychologists in China and relied on Dr. Wong’s recommendation of Dr. Lee.
Dr. Lee was able to communicate with Angel in her native language and she
was familiar with Angel’s culture and education. He argues that Dr. Lee’s
credentials would have been accepted by a British Columbia court. Further, the
amount of the settlement attributable to future loss of earning capacity stems
directly from Dr. Lee’s opinion. Therefore, it was pivotal to the damage
award achieved.

[85]        
In summary, plaintiff’s counsel argues that there was no reasonable
alternative to retaining Dr. Lee despite the cost.

[86]        
The defendant concedes that it was reasonable for plaintiff’s counsel to
arrange the first neuropsychological examination and commission a report. The
defendant disputes the necessity and propriety of the second and third
assessments conducted in 2010 and 2015 by Dr. Lee. Counsel for the
defendant submits that the first report did not reveal any cognitive
difficulties that could be attributed to the accident. He submits that further
neuropsychological testing was, therefore, unnecessary and improper, despite Dr. Lee
herself recommending annual neuropsychological testing in her 2009 report and Dr. Wong
agreeing with that recommendation in his report of September 19, 2009.

[87]        
In support of his argument that counsel for the plaintiff should not
have followed the recommendation of Dr. Lee and Dr. Wong, counsel for
the defendant submits that Angel sustained a minor concussion. The
psychiatrist, Dr. Lu, in his report of November 29, 2007 states that
the “prognostic indicators are good”. In that report, he says nothing further
regarding the concussion and counsel for the defendant therefore submits that
the mild traumatic brain injury is of no consequence. Further, counsel for the
defendant argues that in Dr. Wong’s report of September 16, 2008,
Angel’s recollection of the accident is quite good, indicating that the brain
injury was mild.

[88]        
In his report of November 13, 2008, Dr. Wong states:

the concussion was manifest as
transient confusion lasting a few minutes, without further neurological
sequelae.

Dr. Wong suggests that Angel’s academic progress be
monitored.

[89]        
Dr. Wong does not recommend a neuropsychological assessment in his
report of November 13, 2008. He says:

It would be appropriate to
monitor her for a few years with respect to neurological symptoms and school
performance. For the latter, an educational psychologist familiar with her
multicultural background and the Chinese school system would be the best person
for follow-up.

In all the circumstances, therefore, counsel for the
defendant argues there was no reason for the second and third
neuropsychological assessments.

[90]        
However, it must be borne in mind that Angel was a young child when the
accident occurred and her progress over time, or lack thereof, would be
material to the assessment of damages. If the claim had been settled when Angel
was doing well at school, the settlement figure may have been much lower than
$800,000. The plaintiff was well-served by plaintiff counsel’s cautious and
careful approach to the psychological issues as they were revealed through Dr. Lee’s
assessments.

[91]        
Another lawyer may not have ordered the second and third assessments by Dr. Lee.
However, I am not prepared to second guess the decision of counsel for the
plaintiff here and I find that all three assessments and reports were
proper.

[92]        
Dr. Lee’s fees, however, are excessive.

[93]        
Dr. Lee charged $2,500 Hong Kong dollars (the equivalent of $420
Canadian) per hour for her first report, $2,600 Hong Kong dollars per hour for
the second report and $4,000 Hong Kong dollars (the equivalent of $630 Canadian)
per hour for the third report. There is no evidence as to comparable rates for
other neuropsychologists whom the plaintiff could access either in Hong Kong or
in the region, nor any justification for the increased fees for the third
report.

[94]        
Dr. Lee spent 30 hours on the first assessment, 23 hours on the
second and 35 hours on the third. In Canadian dollars, the fee for the 2009
assessment and report is $12,650; the 2010 assessment and report $8,224.02, and
the 2015 assessment and report $23,175.10.

[95]        
In her letter of justification, Dr. Lee says the first and third
assessments were more comprehensive than the second. I cannot see any
justification for an extra five hours being spent on the third assessment over
the first. Also, there is no justification for the increase in fees from the
second assessment. A rate of $420 per hour is very high compared to rates
charged by British Columbia neuropsychologists. However, I accept that the
unique circumstances of this case justified retaining a Hong Kong
neuropsychologist. I allow the first and second accounts in their entirety.
A reasonable fee for the third assessment and report would be the same as for
the first. I, therefore, allow the third account at $12,650.

Dr. Lu’s second assessment and
report in 2009

[96]        
Dr. Lu is a psychiatrist, but not a child psychiatrist.

[97]        
The defence does not object to the first assessment by Dr. Lu, but
objects to the second as being unnecessary and unreasonable. Dr. Lu
provided a letter of justification. In his first report, Dr. Lu
recommended a follow-up, but this recommendation was for a follow-up with a
child psychiatrist which Dr. Lu is not. In any event, the letter seems to
suggest that follow-up would be for treatment purposes which means the cost
would be a special damage, not a disbursement. Counsel for the defendant
submits that it was appropriate for Angel to see Dr. Smith, who is a child
psychiatrist, but once that referral was made, there was no reason to have Dr. Lu
reassess Angel.

[98]        
Plaintiff’s counsel argues that since Dr. Lu saw Angel in 2007, an
updated assessment and report were proper. He says the disbursement was proper
at the time it was incurred.

[99]        
In my view, the second assessment was not necessary or proper given that
Angel had, appropriately, moved on to a child psychiatrist whose reports are
not disputed. The second report of Dr. Lu falls into the category of “just
in case”. I disallow the disbursement for Dr. Lu’s 2009 assessment
and report.

Louise Craig’s cost of future care
report

[100]     It was
reasonable to obtain a cost of future care report – this point is conceded by
the defendant – but the cost of $6,155.63 is excessive, given that Ms. Craig
was not given specific facts and assumptions upon which to rely. Ms. Craig was,
in fact, given a raft of expert reports and not instructed as to which, if any,
recommendations were still relevant. Therefore, she spent more time (21 hours
at $250 for her time and 17.5 hours at $35 per hour for a research assistant)
than was necessary. A reasonable fee for the report would have been $4,500 and
I allow that amount.

Doug Hildebrand’s report

[101]     The
defendant does not object to Mr. Hildebrand’s report or his fees as such ($6,937.50
before administrative charges and taxes). The objection is to the amount of
time Mr. Hildebrand had to spend to cost out Ms. Craig’s
recommendations given the flaws of Ms. Craig’s report. Many of the
recommendations were academic. If counsel for the plaintiff had instructed Mr. Hildebrand
to ignore certain of the costs found by Ms. Craig, the time spent by Mr. Hildebrand
would have been reduced. I agree with those submissions and I allow 75% of
the $6,937.50. I allow the administrative charges totalling $76.76.

Travel expenses

[102]     There is
an overall objection to both parents travelling to medical assessments with
Angel when only one was necessary. Plaintiff’s counsel’s position is that he
could not use Angel’s father as a litigation guardian because he was with Angel
when the accident occurred and potentially bore some liability for allowing her
to ride her bicycle across the crosswalk. However, no third party notice was
ever filed against the father and the response to civil claim does not allege
any wrongdoing on his part. The expense of having both parents accompany Angel
was not necessary.

[103]     As to
whether the expense is proper, the onus is on the plaintiff to justify the
propriety of the expense. It is understandable that both parents wished to
accompany their daughter for medical appointments, especially since their legal
counsel paid the cost. However, the defendant should not be responsible for the
second parent’s travel costs. Where I have allowed the disbursements for a
medical assessment involving travel, I disallow the travel costs of the
second parent.

[104]     Angel and
her parents travelled from Prince George to Vancouver four times in 2007. Both
parents travelled to Vancouver for the purpose of retaining counsel in November and
that expense is not disputed. The second, third and fourth trips are at issue.

[105]     Apart from
her initial treatment in hospital and possibly a visit to a walk-in clinic,
Angel had no medical treatment in Prince George. Counsel for the plaintiff
arranged for medical assessments in Vancouver and paid the travel expenses for
the family.

[106]     Counsel
for the defendant submits that the medical assessments should have been
consolidated into two trips at most, although he concedes that it is difficult
to book independent medical examinations on short notice. I accept that it
is difficult to obtain appointments for medical assessments with specialists on
short notice. I allow the travel expenses for 2007 limited to Angel and
one parent.

[107]     In
December, 2007, Angel and her parents travelled to Vancouver for the purpose of
a medical assessment with Dr. Chu. ICBC reimbursed plaintiff’s counsel for
the cost of Dr. Chu’s report and I have already determined that the
defence cannot recover that cost back. The travel costs were not reimbursed.
I find that it was reasonable to retain a physiatrist and commission a
report in 2007. Therefore, the travel costs for this trip are allowed limited
to Angel and one parent.

[108]     There are
four trips from China to Vancouver that are in issue. All four trips involved
assessments by Dr. Beauchamp which I have allowed. Therefore, I allow
the travel expenses for the four disputed trips limited to the expenses of
Angel and one parent.

[109]     The
plaintiff claims $349.55 for travel for the examination for discovery of the
plaintiff. It is the portion that remains unpaid for hotel expenses. I allow
this amount as claimed.

Interpreter Expenses

[110]     Where
I have allowed the disbursement for an assessment by an expert where an
interpreter was used, I allow the fees for the interpreter.

CONCLUSION

[111]     I will
leave it to counsel to calculate the amount of the costs allowed in accordance
with these reasons and the other adjustments the parties have agreed to. I ask
that they submit a certificate for my signature confirming the amount. To
ensure that there is no dispute over the amount due, I would ask that both
counsel endorse the draft certificate.

[112]     If counsel
are unable to agree on the correct calculation of the amount due, they may seek
directions.

[113]    
The plaintiff is entitled to her costs of this assessment.

“Master Harper”