IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100513

Docket:
09-2313

Registry: Victoria

Between:

Melanie Spencer

Plaintiff

And

David Michael Horton and Joanne Cecelia Horton

Defendants

SUBJECT TO RULE 66

Before: The Honourable Mr. Justice Punnett

Reasons for Judgment

In Chambers

Introduction

[1]            
As in Spencer v. Popham, 2010 BCSC 683,
released concurrently with this decision (Victoria 09-2313), Melanie Spencer
commenced her action in Supreme Court but settled her claim for an amount
within the Small Claims Court’s jurisdiction. Nevertheless, is she entitled to
costs in this Court? The test is whether there was “sufficient reason” for her
to commence the claim in Supreme Court.

Background

[2]            
The plaintiff, who was earlier involved in a
motor vehicle accident on June 14, 2007, was involved in a second
accident on January 15, 2009. That accident is the subject of this litigation.

[3]            
The plaintiff was stopped to make a left turn when
she was rear-ended. The defendants admitted liability but denied causation. The
plaintiff alleged that as a result of the accident she suffered injuries to her
neck, left shoulder, upper back, left lower back, and left hip. She missed approximately
ten days of work. She was treated by her general practitioner, chiropractor,
and massage therapist. A year after the accident, she has substantially
recovered with the exception of a lack of range of motion in her left shoulder.

[4]            
The plaintiff issued the writ of summons on May
28, 2009, some four months after the accident. It was commenced in the Supreme
Court because of the already existing Supreme Court action and counsel’s view
that both actions should be dealt with at the same time by the same court.

[5]            
On October 5, 2009, by consent order, the
parties agreed that this action and action No. 09-2313 be tried at the same
time, subject to the direction of the trial judge.

[6]            
Eventually, the plaintiff accepted $11,000 in
satisfaction of her claim.

The Law

[7]            
I considered the applicable principals to be
applied in Spencer v. Popham. I need not repeat them.

Discussion

[8]            
The plaintiff concedes that while her counsel as
of May 28th, 2009 was aware that she had suffered soft tissue injuries, her
then counsel did not know the exact degree of those injuries, had neither a
medical-legal report nor the CL19 Medical Report generally obtained by ICBC and
did not know the amount of any special damages or past wage loss.

[9]            
Plaintiff’s counsel submits that since the
plaintiff was the same in both actions, her injuries potentially overlapped,
and it was convenient and efficient to deal with both matters at once, commencing
this action in the same court as the first action was appropriate.

[10]        
The list of factors noted by Master Groves in Kuehne
v. Probstl, 2004 BCSC 865, is not closed. The object of the Supreme
Court Rules according to R. 1(5) is “to secure the just, speedy and
inexpensive determination of every proceeding on its merits.” When a plaintiff
is involved in two separate accidents and her symptoms may overlap, having the
two actions heard in the same court at the same time is an efficient manner of
proceeding. In this action, the parties agreed that was appropriate.

[11]        
The existence of an ongoing Supreme Court action
that should be tried at the same time as a new action is, in my opinion,
sufficient reason to commence the new action in Supreme Court. In light of my
finding in Spencer v. Popham that there was sufficient reason to
commence that action in Supreme Court, it was appropriate to commence this
action in Supreme Court given the common plaintiff and issues. The commencing
of the action four months after the accident was justified so as not to delay
the already existing action.

[12]        
In addition, for the reasons given in Spencer
v Popham, even if there was not already an existing action, the plaintiff
was justified in commencing the proceeding in this Court, notwithstanding the
fact that liability was admitted. The statement of defence pleaded that any
injury, loss, damage or expense of the plaintiff was “attributable to previous
and/or subsequent accidents involving the Plaintiff or congenital defects
and/or pre-existing conditions” and “that the alleged motor vehicle accident
did not aggravate any pre-existing injury or condition”. In this case,
causation and the defendant’s treatment of the issue were sufficiently complex
legally and factually that the plaintiff needed legal counsel.

[13]        
The plaintiff shall recover her costs pursuant
to Rule 66 and the costs of this motion at scale B.

Punnett J.