IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110405

Docket: 06-2649

Registry:
Victoria

Between:

Dino
Sartori

Plaintiff

And:

Robert
Gates

Defendant

Before:
The Honourable Mr. Justice R. D. Wilson

Reasons for Judgment

I.

[1]            
The plaintiff’s claim for damages, for personal injuries, resulted in a
jury verdict, in his favour, assessing his personal injury damages at $344,100.

[2]            
The jury found that the plaintiff was one-third at fault for the
precipitating incident.

[3]            
Post-verdict proceedings about pre-judgment interest, tax liability on
past wage loss and tax gross-up on the cost of future care award, yielded a
judgment in the plaintiff’s favour, in the final analysis, of $234,513.30.

[4]            
The present application seeks a determination of the order to be made,
for the costs of the action.

[5]            
A brief summary of the history of the litigation, as it relates to the
issues of costs raised by the parties, is this.

[6]            
In the summer of 2005, the defendant acquired a new truck.  It was a
1998 Dodge truck, with a standard transmission.  Its curb weight was 5,703
pounds.

[7]            
The defendant wanted to show his new acquisition to his friend, the
plaintiff.  The defendant backed his truck up a sloped driveway, next to a car
on that driveway, at the plaintiff’s residence.  The defendant left the gear
box in neutral and applied the hand brake.

[8]            
The two gentlemen were between the truck and the car when the defendant
moved around to the driver’s door of the truck, to open the hood, to show the
motor compartment to the plaintiff.  The defendant reached into the cab of the
truck and released the hand brake, instead of the hood release.  The truck
rolled down the sloped driveway and pinned the plaintiff between the truck and
the car.

[9]            
This precipitating event occurred on 7 August 2005.

[10]        
On 11 August 2005, the plaintiff was interviewed by a representative of
the defendant’s liability insurance carrier.  During that interview, the
plaintiff said, among other things:

The truck started to roll.  He
tried frantically to get into the bloody truck to apply the brake.  For some
strange reason, I tried to hold the truck back so he could get into it.  The
truck just pushed me and pushed me and the next thing I know I hit Shannon’s
car.

[11]        
The plaintiff was asked the separation distance between the truck and
the car.  His answer was:

Maybe four feet away.

[12]        
He was further asked if he could have moved out of the way.  His answer
was:

I honestly can’t say.  I was
pushing on the front driver’s corner of the truck.

[13]        
The plaintiff commenced his action on 8 June 2006.  Pleadings were
closed by 10 August 2006; subject to an amendment, by consent, made at the
trial of the action.

[14]        
In his statement of defence, the defendant denied liability for the
precipitating incident, with an alternative plea of contributory negligence on
the part of the plaintiff.

[15]        
The plaintiff conducted an examination for discovery of the defendant on
3 November 2006.  The testimony given by the defendant on that occasion
was consistent with plaintiff’s counsel’s theory of the plaintiff’s case.  The
defendant provided no testimony in support of the allegations of negligence
attributed to the plaintiff in the defendant’s statement of defence.  A
compendium of the questions and answers on that examination for discovery, were
read into the record at the trial.

[16]        
Although the defendant’s examination for discovery may have been
consistent with plaintiff’s counsel’s theory of the case, I find that his
examination for discovery testimony was inconsistent with the statements by the
plaintiff, made four days after the precipitating event.

[17]        
The plaintiff’s trial testimony was inconsistent with statements made by
him during the interview of 11 August 2005.  When confronted with the
inconsistencies, on cross-examination, the plaintiff adopted the statements of
11 August 2005.

[18]        
Notice of trial was taken out on 27 April 2007, with a return date in
October 2008.

[19]        
The defendant commenced his oral examination for discovery of the
plaintiff on 17 May 2007.

[20]        
As a result of the plaintiff’s pending surgery, the October 2008 trial
date was adjourned generally.

[21]        
On 20 April 2008, the defendant’s liability insurance carrier commenced
surveillance of the plaintiff.  Video recordings were made during that
surveillance.  On the initial occasion, the surveillance occurred on 20, 22 and
23 April 2008.

[22]        
In August 2008, the plaintiff underwent back surgery.

[23]        
In June 2009, the defendant delivered an offer to settle the plaintiff’s
claim at $55,000, subject to conditions.

[24]        
In July 2009, a new notice of trial was taken out, with a return date of
10 January 2011.  Counsel estimated 15 days as required for the hearing of
this action.

[25]        
In the autumn of 2007, it appears, the plaintiff began marshalling the
opinion evidence necessary for the presentation of his claim.  The marshalling
of this evidence appears to have been concluded by 8 November 2010.  Although
there is no evidence of this fact, I presume notice of the opinion evidence was
given in, or about, November 2010.

[26]        
Further surveillance was conducted on 27, 28 and 29 August 2009.  And
again on 17 and 18 July 2010.

[27]        
At a trial management conference on 16 November 2010, the defendant
admitted liability, but identified the issues for resolution as contributory
negligence on the part of the plaintiff, and quantum of damages.  In his brief
for that conference, the defendant revealed the existence of video recordings
of the surveillance conducted on the plaintiff.

[28]        
At that conference, the court abridged the time prescribed in R.
12-5(10) and ordered the delivery of copies of the video recordings by the
close of business on 23 November 2010.  The defendant delivered edited
video recordings on 17 November 2010, and unedited video recordings on 23
November 2010.

[29]        
On 13 December 2010, the defendant delivered a second offer to settle. 
This offer is for $230,000.  It is subject to a number of conditions.  Two of
those conditions are material in the context of the present inquiry.  They were
paraphrased in the plaintiff’s brief on costs:

▪     upon
acceptance of the offer, the Plaintiff was entitled to costs and necessary and
reasonable disbursements to the date of delivery of the offer …;

▪     upon acceptance of the offer,
the Defendant was entitled to costs and necessary and reasonable disbursements
from the date of delivery of the offer

[30]        
On 14 December 2010, the plaintiff delivered to the defendant a formal
offer to settle in the amount of $600,000, plus assessable costs and
disbursements.

[31]        
The offers were not accepted.  The matter went to trial.

[32]        
In her opening to the jury, counsel for the plaintiff advised the jury
that the plaintiff would be seeking $700,000 to $850,000 for his financial
losses, plus a sum for the greatest loss, the human loss, i.e., non-pecuniary
damages.

[33]        
On the seventh day of the trial, 18 January 2011, the plaintiff proposed
to tender a report by a medical practitioner.  That report had its own
history.  In the initial format,  delivered to the defendant, this
practitioner’s report was in a format which had been previously criticized by a
judge of this court, in Warkentin v. Riggs.[1]
Counsel for the defendant raised objection to this report with plaintiff’s
counsel, who then  sought a reformatting of the report, to eliminate the more
obvious indications of advocacy.  It was the reformatted report which was
sought to be tendered in evidence.  The defendant continued to take objection
to the jury hearing any evidence from this medical practitioner.  Accordingly,
a voir dire was conducted throughout the eighth day of trial.  As it
developed, it was not necessary for me to make a ruling on the admissibility of
that report, because the plaintiff advised that this report would not be
tendered.  And the doctor would not be called to testify, viva voce,
before the jury.

[34]        
In her closing argument, plaintiff’s counsel suggested the following
assessments:

Plus, non-pecuniary damages.

[35]        
The jury returned the following verdict:

[36]        
The jury found the plaintiff 33 1/3% at fault for the incident.  In
result, at that stage of the proceedings, therefore, the plaintiff fell
approximately $500 short of the defendant’s offer.

[37]        
There remained, however, a determination of the issues of interest,
deduction of so-called Part 7 benefits, and tax gross-up on the award for costs
of future care.

[38]        
On the return of the applications for determination of those issues, the
plaintiff was prepared to have them all heard on the same day.  The defendant
was not prepared to proceed, and accordingly, the matter was adjourned for
further hearing from 3 February 2011 to 10 February 2011.

[39]        
Upon those issues being resolved, the plaintiff’s final award is
$234,513.30.

[40]        
The plaintiff’s proposed bill for assessment is approximately $135,660.00,
consisting of $14,660 in costs, plus $121,000.00 in disbursements.

II.

[41]        
The parties raised two essential issues for determination.  The first is
whether the plaintiff is entitled to his costs throughout.  The second is
whether the plaintiff is subject to a one-third reduction in his costs and
disbursements due to his own contributing fault.

III.

[42]        
The governing principle on the first issue, is R. 14-1(9).  The material
words of that subrule, on this application, are:

…costs of a proceeding must be
awarded to the successful party unless the court otherwise orders.

[43]        
The onus is on the defendant to persuade me why I should otherwise
order.[2]

[44]        
The defendant’s first position, on that first issue, is that the
plaintiff should be entitled to none of his costs or disbursements incurred
after the date of the defendant’s offer to settle on 13 December 2010.

[45]        
In support of that position, the defendant calls in aid the provisions
of R. 9‑1(5)(a):

(5)        In a proceeding in which an offer to settle has
been made, the court may do one of more of the following:

 (a)        deprive a party of
any or all of the costs, including any or all of the disbursements, to which
the party would otherwise be entitled in respect of all or some of the steps
taken in the proceeding after the date of delivery … of the offer to settle.

[46]        
Subrule (6) of R. 9-1, informs the exercise of the discretion conferred
by subrule (5):

(6)        In making an order under subrule (5), the court
may consider the following:

 (a)        whether
the offer to settle was one that ought reasonably to have been accepted, either
on the date that the offer to settle was delivered or served or on any later
date;

 (b)        the relationship
between the terms of settlement offered and the final judgment of the court;

[47]        
The defendant contends that the plaintiff ought reasonably to have
accepted his offer; that the offer was within a knife’s edge of rendering the
trial unnecessary, or at the least, raising a different issue to be determined
on this application, namely, the payment of costs by the plaintiff to the
defendant.

[48]        
The defendant’s second position, on that first issue, is that both the
plaintiff and defendant were partially successful on the plaintiff’s claims for
future loss of income and cost of future care.  These two heads of damage
consumed 75% of the trial time.  The defendant argues that these issues were
the main focus of his defence.

[49]        
The plaintiff sought an award of $500,000.00 for future income loss; the
jury’s verdict resulted in an award of $46,000.00.

[50]        
The plaintiff sought an award of $186,400.00 for cost of future care;
the jury’s verdict resulted in an award of $41,300.00.

[51]        
Therefore, goes this argument, the plaintiff should get 25% of his costs
and disbursements after the date of the delivery of the offer.  And in any
event, the plaintiff should be allowed no costs or disbursements associated
with the seventh day of trial and the medical practitioner involved.

[52]        
The defendant’s third position, on this first issue, is that the
defendant should be awarded his costs of the trial, for that part of the trial
devoted to the plaintiff’s claims for future income loss and cost of future
care.

[53]        
This third position is founded on R. 14-1(15), the material words of
which are:

(15)      The court may award costs

 (b)        that
relate to some particular … step or matter in or related to the proceeding, or

 (c)        except so far as
they relate to some particular … step or matter in or related to the
proceeding.

[54]        
The defendant has not persuaded me that he has established grounds for
me to otherwise order.  For the following reasons.

IV.

[55]        
The plaintiff reminds me that the discretion conferred by the cost rules
must be exercised judicially.  The parameters of that judicial duty were
referred to in Stiles v. B.C. (Workers’ Compensation Board),[3]
and iterated consistently thereafter.  The court said:

…The discretion must be exercised
judicially, i.e. not arbitrarily or capriciously.  And, as I have said, it must
be exercised consistently with the Rules of Court.  But it would be a sorry
result if like cases were not decided in like ways with respect to costs.  So,
by judicial comity, principles have developed which guide the exercise of the
discretion of a judge with respect to costs.  Those principles should be
consistently applied; if a judge declines to apply them, without a reason for
doing so, he may be considered to have acted arbitrarily or capriciously and
not judicially.

[56]        
The Rules of Court mentioned in that extract are those cited above.  The
“principles … developed …” [4]or
“purposes”, were referred to in Giles v. Westminster Savings and Credit
Union:

The purposes for which costs rules exist must be kept in mind
in determining whether appellate intervention is warranted.  In addition to
indemnifying a successful litigant, those purposes have been described as
follows by this Court:

•     “[D]eterring
frivolous actions or defences”: Houweling Nurseries Ltd. v. Fisons Western
Corp. (1988), 37 B.C.L.R. (2d) 2 at 25 (C.A.), leave ref’d, [1988] S.C.C.A.
No. 200, [1988] 1 S.C.R. ix;

•     “[T]o
encourage conduct that reduces the duration and expense of litigation and to
discourage conduct that has the opposite effect”: Skidmore v. Blackmore
(1995), 2 B.C.L.R. (3d) 201 at para. 28 (C.A.);

•     “[E]ncouraging
litigants to settle whenever possible, thus freeing up judicial resources for
other cases”: Bedwell v. McGill, 2008 BCCA 526, 86 B.C.L.R. (4th) 343
at para. 33;

•     “[T]o have a winnowing function in
the litigation process” by “requir[ing] litigants to make a careful assessment
of the strength or lack thereof of their cases at the commencement and
throughout the course of the litigation”, and by “discourag[ing] the
continuance of doubtful cases or defences”: Catalyst Paper Corporation v.
Companhia de Navegaçao Norsul, 2009 BCCA 16, 88 B.C.L.R. (4th) 17 at para.
16.

[57]        
Giles is also authority for the proposition that the “usual rule”
is that costs follow the event.

[58]        
The notion of “like cases … decided in like ways”, is one of those legal
precepts beguiling in their simplicity, but complex in their application. 
Counsel have referred to 11 reports of previous dispositions on costs issues. 
Several of them are “like” the present case in that they involve cost disputes
arising out of personal injury litigation.  Some are unlike in that they deal
with awards falling short of an offer.  I find none of the previous
dispositions dispositive of this case.  Although I find a number of
similarities between this case and Fan v. Chana.[5]

[59]        
General principles may not decide concrete cases. But they are the
starting point.

[60]        
The first general principles for consideration in this case are found in
R. 9-1(5) and (6).  The defendant says his offer ought reasonably to have been
accepted.  He contends the offer was not accepted because the plaintiff viewed
his case as much stronger than did the jury.  I do not think that the jury
award is relevant at this point in the analysis.  The question is, what
information did the plaintiff have available to him on the day before the trial
commenced.[6]

[61]        
I agree that the plaintiff believed he had a strong claim.  He appears
to have viewed the matter from his own perspective.  He did not consider the
claim of contributory negligence as a serious issue in this litigation.  He
relied upon the examination for discovery testimony of the defendant, and the
testimony of his wife, to found his decision on the issue of contributory
negligence.  He discounted his own statement to the defendant’s liability
insurance representative, four days after the precipitating event.

[62]        
Objectively, the plaintiff’s admissions in that statement did provide a
basis for a finding of contributory negligence on the part of the plaintiff. 
But, I find, the plaintiff virtually ignored it.

[63]        
Similarly, the video recordings of the plaintiff during the surveillance
episodes, viewed objectively, depicted a person physically capable of activity
which the plaintiff denied he was capable of undergoing.  The plaintiff
interpreted that evidence as neutral.  And he received opinions from his
medical practitioners that the activity depicted did not change their opinion
of a permanent partial disability.

[64]        
Doctors are not judgmental.  Juries are.  Consideration ought to have
been given to the possibility that the trier of fact would accept the
plaintiff’s initial description of the precipitating incident, and discount the
evidence of his disability in the face of the video recording evidence.  He
gave no such consideration.

[65]        
That said, however, the question remains, objectively, was the
defendant’s offer of $230,000 one that ought reasonably to have been accepted?

[66]        
“By law” said Justice Oliver Wendell Holmes, “I mean what the courts
will do next time”.  There is some similarity there for a party presented with
an offer to settle; i.e., they must project what this court will do this time. 
Given the information available on the day before trial, including the
plaintiff’s statement, the opinions of the experts engaged by the plaintiff,
the opinions of the expert engaged by the defendant, and the surveillance video
tapes, it is my opinion that the defendant’s offer was within the range of a
probable award.

[67]        
The plaintiff had the right to test the extent of that range by trial
adjudication.

[68]        
I endorse the following proposition from Lumanlan v. Sadler:[7]

…one should be cautious, with
the advantage of hindsight, in equating having guessed wrongly with having been
unreasonable in rejecting an offer

[69]        
In result, I find the defendant’s offer was not one that the plaintiff
ought reasonably to have accepted.

V.

[70]        
As I understand the defendant’s argument on his second position (above),
it is founded on the notion of comparative success.  The defendant contends
that the plaintiff failed to achieve the awards he sought, and the defendant
succeeded in reducing those awards.

[71]        
Unlike the plaintiff, the defendant did not advise the jury of his own
assessment on the future income loss and the cost of future care assessments. 
Indeed, the defendant’s argument on those heads of damage was that there was no
basis for any award.  That may mean that the defendant was advocating a zero
award on each head of damage.

[72]        
I do not understand the law to authorize me to parse out degrees of
success.  The plaintiff did recover awards on both heads.  Therefore, it cannot
be said that there was comparative success, particularly if I have correctly
interpreted the defendant’s closing argument to the jury that the plaintiff
should be awarded nothing on those two heads of damages.

[73]        
The loss of the seventh day of trial is a different matter.  It was
manifest from the format and content of his report, and his viva voce
testimony on the voir dire, that this medical practitioner was not a
qualified expert.  He was acting as the plaintiff’s advocate.  The report of
this medical practitioner, edited or unedited, ought not to have been tendered.

[74]        
Rule 14-1(14) confers a power on the court to disallow costs arising
from, or associated with, anything done improperly.

[75]        
In my opinion, that rule is applicable in the circumstances here
presenting.  Therefore, in any event, the plaintiff is disallowed costs for the
seventh day of trial and all disbursements associated with the reports of Dr.
David G. Hunt, and his attendances at trial.

VI.

[76]        
This brings me to the defendant’s third position on the first issue
above, which as I understand it, is equivalent to, albeit not the same as, his
second position.  It is based upon the plaintiff’s failure to accept a
reasonable offer and his failure to achieve the assessments he submitted to the
jury, for future income loss and cost of future care.  The defendant contends
that the majority of time in this trial was devoted to those issues.  Upon
which, goes the argument, the defendant succeeded.  Therefore, the plaintiff
should pay the defendant’s costs for that part of the trial taken up by the
plaintiff in pursuit of his claims exaggerated for loss of future earning
capacity and cost of future care.

[77]        
The defendant cites in aid of that argument, my prior decision in Gemmell
v. Reddicopp.[8]

[78]        
In Gemmell, there was a discrete, easily defined issue involved,
namely, did the defendant’s carelessness cause the loss alleged by the
plaintiff.

[79]        
The plaintiff led no evidence of causation.  The defendant led evidence
that the carelessness did not cause the alleged loss.  In result, the defendant
succeeded entirely on the issue of causation.

[80]        
That is not this case.  Here, this plaintiff did succeed.  The
defendant’s argument is that he did not succeed to the extent of his aspirations. 
Therefore, goes the argument, the defendant should have the costs of
establishing that failure.

[81]        
In my opinion, that proposition is not a phenomenon contemplated by
R. 14‑1(14) or Forrest v. Gaidner.

VII.

[82]        
My conclusion on the first issue is that the defendant has not persuaded
me that this is a case on which I should otherwise order.  The plaintiff is
entitled to his costs, subject to the disallowance of one day of trial and
disbursements associated with Dr. Hunt’s involvement.

VIII.

[83]        
The second issue raised by the parties relates to s. 3(1) of the Negligence
Act:[9]

3 (1)        Unless the
court otherwise directs, the liability for costs of the parties to every action
is in the same proportion as their respective liability to make good the damage
or loss.

[84]        
In a case like this one, the “usual”[10]
rule, or “usual or prima facie”[11]
rule, requires the defendant to pay two-thirds of the plaintiff’s costs and
disbursements, pursuant to his proportionate liability.

[85]        
Presumably, that rule is based on the tort law of this province that
there is no liability without fault.  However, the usual, or prima facie,
rule, may be displaced if its application would result in an injustice, in the
circumstances of the case.

[86]        
The parties have provided seven reports of previous dispositions of the
issue, none of them dispositive of this case.  The governing principles are the
same in each of them, but the circumstances of each case are different.

[87]        
In Moses,[12]
Madam Justice Gray analyzed the then existing authority, and inventoried some
of the factors previously considered in a determination of when an application
of the usual rule would work an injustice.  Except for a consideration of Madam
Justice Gray of the legal fees as a factor in the determination, the Court of
Appeal found no error in Madam Justice Gray’s analysis.

[88]        
Similar factors were considered by R. R. Holmes J. in Ogilvie v.
Mortimer [13]

[89]        
Cohen J. applied the Gray J. inventory in Heppner v. Zia.[14]

[90]        
In this case, I make the following findings on those factors identified
by the judges of this court.

[91]        
First, the plaintiff suffered a disc herniation which resolved with
surgery.  He was left with an unresolved soft tissue injury resulting in a
condition of chronic pain.

[92]        
Second, the defendant admitted liability, prior to making his offer and prior
to trial.

[93]        
Third, the defendant’s second offer of settlement was within the range
of an action of this type, and very close to equal that of the award achieved.

[94]        
Fourth, the plaintiff was not forced to go to trial to obtain recovery. 
He could have obtained a recovery if he had accepted the offer.  He did not
like the defendant’s assessment of his claim and therefore, did not accept the
offer.

[95]        
Fifth, I have no evidence that the costs of getting to trial were out of
the ordinary in what was a conventional personal injury trial.  Unlike the
costs to the plaintiffs in the matter of Forsyth v. Sikorsky Aircraft Corp.[15]

[96]        
Sixth, the difficulty and length of this trial was equivalent to a
conventional personal injury action.  The estimated time of trial was 15 days. 
The actual time was 14 days.  Except for the day lost dealing with Dr. Hunt’s
proposed testimony, counsel moved this matter forward with dispatch.

[97]        
Seventh, I have no evidence of the cost to this plaintiff in obtaining
the results he did achieve.

[98]        
Eighth, the positions taken by both parties at the trial of this action
were appropriate and reasonable.

[99]        
Ninth, the defendant made two settlement offers.  Only the second offer
was meaningful, in that it was extended after the defendant had received the
opinion evidence marshalled by the plaintiff.

[100]     Tenth, the
result of the trial was very close to the defendant’s offer to settle.

[101]     Eleventh,
the plaintiff’s success at trial will not be defeated if liability for costs is
based upon proportion of fault.

[102]     Unless otherwise
directed, the plaintiff will recover his judgment of $234,513.00, plus 66 2/3%
of his costs and disbursements, for a total of $324,863.00.

[103]     If
otherwise directed, as urged by the plaintiff, then he will recover this
judgment, plus estimated costs and disbursements (of $135,660.00) for a total
of $370,173.00.  The difference is some $45,000.  That is not a “punishing”
costs order.

[104]     On this
second issue, the onus is on the plaintiff, to persuade me that it would be
unjust not to impose a liability on the defendant for which he was not at
fault.

[105]     In all of
the circumstances of the case, I am not so persuaded.  The “usual” rule will
prevail.  The plaintiff will recover two-thirds of his costs, subject to the
disallowance of the costs of one day and any disbursements associated with
Dr. Hunt’s involvement.

[106]    
In my view, there has been divided success on the present applications. 
My inclination is that no costs should be payable by or to either party. 
However, counsel did not have an opportunity to address the costs of those
applications.  If necessary, the matter may be spoken to.

                   “R.
D. Wilson, J.”                    

The
Honourable Mr. Justice R. D. Wilson