IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121024

Docket: M102490

Registry:
Vancouver

Between:

Siu
Lan Wong-Lai

Plaintiff

And

Hak
Min Ong and Pollyanna Sher

Defendants

Before:
The Honourable Mr. Justice Sewell

Reasons for Judgment

[1]            
In these reasons I will deal with two applications. The first is an
application by the plaintiff to be awarded 90% of her assessed costs and
disbursements throughout this proceeding. The second is an application by the
defendants for an order that the plaintiff recover 25% of her costs up to the
delivery of the defendants’ June 27, 2011 settlement offer and no costs
thereafter and that they be awarded 100% of their costs of this proceeding from
that date. In the alternative, the defendants seek an order that the plaintiff
shall be entitled to 25% of her costs up to June 27, 2011 and that no costs be
awarded to either party after that date.

[2]            
This case arises out of a pedestrian-motor vehicle collision that
occurred on November 28, 2009 in Vancouver, British Columbia. On that day, the plaintiff,
an elderly woman of Chinese descent, was crossing Prior Street with her husband
when they were both struck by a motor vehicle driven by the defendant Hak Ming Ong
and owned by the defendant Pollyanna Sher. The plaintiff’s husband was killed
in the accident, and the plaintiff sustained very serious personal injuries
that required her to be hospitalized for an extended period of time.

[3]            
The plaintiff is a person of very modest means. She lives with her son
and his family. Her Old Age Security and Canada Pension Plan income is
approximately $13,000 per year. She does not own any property.

[4]            
A statement of claim was filed on May 26, 2010 in respect to the accident
and the defendants filed a response to the statement of claim on August 16,
2010. Liability was contested at trial with the defendants asserting that the plaintiff
was 100% at fault for the accident.

[5]            
The trial of this action took place from July 4, 2011 to July 21, 2011.
There were nine full and two half days of hearings.

[6]            
At 3:30 p.m. on June 27, 2011 the defendants offered to settle the
plaintiff’s claim by payment in the amount of $100,000.00 in “new money” plus
50% of the plaintiff’s costs to the date of the offer. The offer was open for
acceptance until the last working day before the trial, which was scheduled to
commence on Monday, July 4. Because Friday, July 1 was a statutory holiday, the
offer was open only until June 30, 2011.

[7]            
By June 27, 2011, the plaintiff had incurred significant taxable costs
and disbursements in preparing for trial and had already scheduled her experts
to appear at trial the following week. The plaintiff served an offer to settle
for $150,000 to the defendants on June 29, 2011 that expired on June 30, 2011,
and made a second offer to settle for $150,000 on July 2, 2011 extending the
time to accept the offer to July 6, 2011. None of the settlement offers was
accepted by the other party.

[8]            
At trial, the plaintiff and the defendants each tendered one expert report
on the issue of liability. Both experts were examined at trial. Several lay
witnesses testified for both sides with respect to liability. The plaintiff tendered
five expert reports with respect to damages in addition to the testimony of the
plaintiff and three of her family members.

[9]            
Approximately 3-4 days of the trial were spent on liability and
approximately six to seven days were spent on damages, although there was some
degree of overlap in the evidence as between the two issues.

[10]        
The plaintiff sought damages of $633,209.50 at trial as follows:

[11]        
The defendants’ position on damages at trial was as follows:

[12]        
I assessed the plaintiff’s damages at $343,253 as follows:

[13]        
I apportioned liability at 25% to the defendant and 75% to the plaintiff
and accordingly rendered judgment against the defendant for $85,813.

[14]        
The plaintiff tendered a draft bill of costs at this hearing estimating
her costs as follows:

[15]        
The defendants do not accept the costs claimed and in particular take
the position that no disbursements should be recovered in respect of the
medical opinion evidence of Dr. Hunt. However, their counsel did not dispute
that the draft bill represented a fair approximation of the plaintiff’s taxable
costs.

[16]        
After delivery of judgment, the parties entered into an agreement
whereby the plaintiff waived her claims for future Part VII benefits, and the
defendants waived their right to a reduction of the judgment as a result of
Part VII benefits previously paid.

Legal Framework

[17]        
The two applications before me raise different but inter-related issues.
The plaintiff’s application is made pursuant to section 3(1) of the Negligence
Act, R.S.B.C., 1996, c.333, while the defendants’ application is brought
pursuant to Rule 9-1 of the Supreme Court Civil Rules.

[18]        
The plaintiff’s application is made necessary by s. 3(1) of the Negligence
Act, which provides as follows:

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.

[19]        
In Flatley v. Denike (1997), 32 B.C.L.R. (3^rd) 97,
McEachern C.J.B.C. stated as follows at paras. 20-22:

20  Turning
to the question of costs, s. 3, the liability for costs of the parties
"…shall be in the same proportion as their respective liability to make
good the damage or loss…"

21  In
cases where the defendant has not suffered damage, the plaintiff is under no liability for costs because the
plaintiff’s liability, if any, would only be in the same proportion as his or
her liability to make good the defendant’s damage or loss, of which there is
none.

22  As
a result I would hold that in cases such as this, where the defendant suffers
no damage or loss, but liability is divided, the defendant must pay the
plaintiff the same proportion of the plaintiff’s costs as the defendant is
liable for the plaintiff’s damages, but the plaintiff is not liable to pay any
portion of the defendant’s costs.

[20]        
Therefore, unless I direct otherwise, the defendants will be required to
pay 25% of the plaintiff’s costs, subject of course to any order I may make as
a result of the offer to settle.

[21]        
The fact that there are competing applications raises the issue of the
order in which I should consider the issues before me. I have decided that it
is appropriate for me to decide whether I should make an order varying the cost
apportionment provided for in s. 3(1) of the Negligence Act before
considering what order I should make pursuant to Rule 9-1 of the Supreme
Court Civil Rules as a result of the settlement offer.

[22]        
This is the approach suggested in the dicta of Newbury J.A. in Bedwell
v. McGill, 2008 BCCA 526, 86 B.C.L.R. (4th) 343 at paragraph 29. However,
the authorities direct that in determining whether to exercise discretion under
s. 3(1), I may take into account the fact that the defendants made a settlement
offer. I will therefore also address the settlement offer in the context of the
s. 3(1) consideration.

Section 3(1) of the Negligence Act

[23]        
Numerous cases have considered the discretion granted by s. 3(1) of the Negligence
Act. In Moses v. Kim, 2007 BCSC 1820, [2008] B.C.W.C.D. 3059,
Gray J. stated as follows at paragraph 13:

[13]  The
authorities demonstrate many factors the court has considered in exercising
this discretion. Among them are the following:

(a) the seriousness of the
plaintiff’s injuries;

(b) the difficulties facing the
plaintiff in establishing liability;

(c) the fact that in settlement
negotiations the amount offered was substantially below the ultimate amount;

(d) whether the plaintiff was
forced to go to trial to obtain recovery;

(e) the costs of getting to trial;

(f) the difficulty and length of
the trial;

(g) whether the costs recovery
available to the plaintiff, if costs are apportioned according to liability,
will bear any reasonable relationship to the party’s costs in obtaining the
results achieved;

(h) the positions taken by the
parties at trial, in particular whether the positions taken were appropriate
and reasonable in the circumstances;

(i) whether the defendants made any
settlement offers;

(j) the ultimate result of the
trial; and

(k) whether the plaintiff achieved substantial success that
would be effectively defeated if costs were awarded pursuant to s. 3(1) of the Negligence
Act.

[24]        
Gray J.’s decision in Moses v. Kim was appealed. In Moses v.
Kim, 2009 BCCA 82, 90 B.C.L.R. (4th) 367, D. Smith J.A. stated as
follows at paras. 70-71:

[70]  The
trial judge considered that the opening words of s. 3(1) of the Negligence
Act gives the court discretion to depart from the usual rule, but that
there must be reasons connected to the case to do so: Peters v. Davidson
(1981),125 D.L.R. (3d) 753 (B.C.S.C.), aff’d. (1982) 141 D.L.R. (3d) 763
(C.A.). In deciding whether to depart from the usual rule, the principle
consideration is whether an injustice will result by adhering to the usual
rule: Forsyth v. Sikorsky Corp., 2002 BCCA 231,100 B.C.L.R. (3d) 66. The
trial judge also reviewed this Court’s decision in Moore v. Dhillon (1993),
85 B.C.L.R. (2d) 69 (C.A.), in which the Court, per Taylor J.A., held
that there was a potential for injustice if the usual rule is applied in
circumstances where there is a defendant who has suffered no injury or damages.

[71]  In departing from the
usual rule, trial judges have considered a variety of factors in the exercise
of their discretion in awarding costs. Relying on Forsyth and Logeman
v. Rossa, 2006 BCSC 692, the trial judge summarized these factors at para.
13. Thereafter, she reviewed a number of decisions involving awards of costs
where there was an apportionment of liability, deciding to follow the reasoning
in Bourelle v. Andrychuk (1998), 61 B.C.L.R. (3d) 191 (C.A.), to
conclude that it was appropriate to award Mr. Moses 90% of his costs because
90% of the trial time was devoted to the issue of damages rather than
liability.

[25]        
The above quotation makes it clear that the overriding consideration in
exercising the discretion granted by s. 3(1) of the Negligence Act is
whether an injustice will result if costs are apportioned in the same ratio as
liability. The factors outlined in Moses v. Kim should be considered to
determine that issue.

[26]        
In this case, I have taken into account the following factors:

(a)           
the plaintiff suffered very serious injuries. She suffered a significant
degree of disability. Her life was profoundly affected by her injuries. The
seriousness of the plaintiff’s injuries is reflected in the amount of
non-pecuniary damages awarded in her favour.

(b)           
The plaintiff’s case faced significant difficulty in establishing
liability. Liability was hard fought with both sides calling accident reconstruction
experts. The defendants’ principal submission was that the plaintiff was 100%
liable for the accident. While at the conclusion of their argument, the
defendants did acknowledge the possibility of some degree of liability being
assigned to them, they made strong submissions to me that the action should be
dismissed entirely.

(c)           
The amount offered by the defendants in settlement of the claim was
$100,000 plus 50% of the taxable costs incurred by the plaintiff up to the date
of the offer to settle. While the amount offered for damages exceeded the net
amount recovered for damages by the plaintiff, the settlement offer also
required the plaintiff to give up any right she had to seek an increased
percentage of her taxable costs. In this case, the disbursements were
substantial and requiring the plaintiff to bear 50% of the disbursements would
have significantly reduced her net recovery.

(d)           
The plaintiff was not required to go to trial to obtain some recovery.
However, I do consider it of significance that the settlement offer made was
significantly less than the amount of the plaintiff’s damages before
apportionment and would have required the plaintiff to bear 50% of the cost of
the expert’s reports. In addition, the plaintiff was required to advance the
case to the eve of trial before receiving a substantial offer.

(e)           
This was obviously an expensive trial in which both liability and the
quantum of damages were hotly contested. The complexity of the plaintiff’s
injuries necessitated the preparation of extensive expert evidence. While it is
correct that the amount of damages collected was less than the offer to settle,
it is also obvious that the settlement offer and the amount of damages
recovered were largely dependent upon the expert evidence tendered by the
plaintiff.

(f)             
The position taken by both parties at trial was reasonable in the
circumstances. I therefore consider this to be a neutral factor in considering
this question.

(g)           
In this case, the defendants did make a settlement offer in which they
offered a reasonable amount for the plaintiff’s damages. However that offer
would, if accepted, have imposed a significant burden on the plaintiff in terms
of being forced to absorb 50% of the costs of obtaining the expert evidence
which was necessary for a final resolution of the issues in this case. For the
reasons given in my consideration of the defendants’ application pursuant to
Rule 9-1, and in particular because of the limited time the offer was open to
acceptance, I do not consider that the offer should be given significant weight
in determining whether I should award the plaintiff more than 25% of her costs
in this case.

(h)           
In this case, the ultimate result of the trial was that the plaintiff
did recover substantial damages from the defendant. Those damages would not
have been recovered had the plaintiff not commenced this proceeding and
prepared and presented cogent evidence in support of the claim. I have no doubt
that the expert evidence presented by the plaintiff before trial was a
significant factor in the settlement offer made by the defendants.

(i)             
The plaintiff did achieve substantial success in this case, but the
defendants also achieved success in the apportionment of liability.

[27]        
The defendants submitted that it would not be unjust to restrict the
plaintiff to recovery in accordance with section 3(1) of the Negligence Act
because the plaintiff’s actions have unnecessarily increased the cost and
complexity of these proceedings. The defendants submit that there would have
been substantial cost savings if the issues of liability and damages had been
severed in this case. They point out that they made an application for
severance which was resisted by the plaintiff and dismissed.

[28]        
It is implicit in this submission that once the issue of liability had
been determined, the prospects of reaching a negotiated settlement would have
materially increased. I am not satisfied that a decision with respect to
liability would have in fact avoided the necessity of a trial on damages. There
was a significant disagreement between the parties as to the proper quantum of
the plaintiff’s claim. In addition, a substantial portion of the costs incurred
by the plaintiff relate to the preparation of medical legal reports which were
necessary to inform the parties with respect to the quantum issue.

[29]        
In addition, the defendants rely strongly on the offer to settle which
they made and argue that the plaintiff is the author of her own misfortune
because it was her decision to proceed to trial rather than accept a settlement
offer. However, for the reasons given in that portion of this judgment dealing
with the defendants’ application, I do not think that the plaintiff acted
unreasonably in failing to accept the offer. Accordingly, I conclude that the
offer does not preclude me from awarding the plaintiff in excess of 25% of her
costs, including from the time after the settlement offer was made.

[30]        
I conclude that the plaintiff’s recovery would be substantially defeated
if costs were awarded pursuant to s. 3(1) of the Negligence Act. If the
plaintiff is required to bear 75% of her costs, the disbursements alone would
reduce her recovery approximately 63%. I think that this would result in an
injustice to the plaintiff.

[31]        
Taking all of the above circumstances into account and in particular the
profound effect that requiring the plaintiff to pay 75% of her costs would have
on her net recovery, I order that the plaintiff be entitled to recover 2/3 of
her costs of this action on scale B. In reaching this conclusion, I have taken
into account the defendants’ success with respect to liability and the quantum
of the plaintiff’s claim. Despite this success, I am of the view that it would
be unjust to the plaintiff to restrict her to 25% of her costs.

Rule 9-1 Application

[32]        
The relevant parts of Rule 9-1 of the Supreme Court Civil Rules
provide as follows:

(1) In this rule, "offer to
settle"
means

(a) an offer to settle made and
delivered before July 2, 2008 under Rule 37 of the former Supreme Court Rules,
as that rule read on the date of the offer to settle, and in relation to which
no order was made under that rule,

(b) an offer of settlement made and
delivered before July 2, 2008 under Rule 37A of the former Supreme Court Rules,
as that rule read on the date of the offer of settlement, and in relation to
which no order was made under that rule, or

(c) an offer to settle made after
July 1, 2008 under Rule 37B of the former Supreme Court Rules, as that rule
read on the date of the offer to settle, or made under this rule, that

(i) is made in writing by a party
to a proceeding,

(ii) has been served on all parties
of record, and

(iii) contains the following
sentence: "The …………[party(ies)]…………,
…………[name(s) of
party(ies)]…………, reserve(s) the right to bring this offer
to the attention of the court for consideration in relation to costs after the
court has pronounced judgment on all other issues in this proceeding."

Offer
not to be disclosed

(2) The fact that an offer to settle has been made
must not be disclosed to the court or jury, or set out in any document used in
the proceeding, until all issues in the proceeding, other than costs, have been
determined.

…

Offer may be considered in relation to costs

(4) The court may consider an offer to settle when
exercising the court’s discretion in relation to costs.

Cost options

(5) In a proceeding in which an offer to settle has
been made, the court may do one or 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 or service of the offer to settle;

(b) award double costs of all or
some of the steps taken in the proceeding after the date of delivery or service
of the offer to settle;

(c) award to a party, in respect of
all or some of the steps taken in the proceeding after the date of delivery or
service of the offer to settle, costs to which the party would have been
entitled had the offer not been made;

(d) if the offer was made by a
defendant and the judgment awarded to the plaintiff was no greater than the
amount of the offer to settle, award to the defendant the defendant’s costs in
respect of all or some of the steps taken in the proceeding after the date of
delivery or service of the offer to settle.

[am. B.C. Reg. 119/2010, Sch. A, s. 21.]

Considerations
of court

(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;

(c) the relative financial
circumstances of the parties;

(d) any other factor the court considers appropriate.

[33]        
In this case there is no dispute that the defendants made an offer to
settle that complied with the provisions of Rule 9-1(1)(c). Rule 9-1(4) gives
the court a discretion as to whether to consider an offer to settle when
exercising the court’s discretion in relation to costs.

[34]        
Rule 9-1(5) outlines the options open to the court in exercising its
discretion. Rule 9‑1(6) sets out some of the considerations which
the court may consider in deciding whether to make an order under Rule 9-1(5):
(Dodge v. Shaw Cablesystems Ltd., 2009 BCSC 1765, 2 B.C.L.R. (5th) 369, (“Dodge”)
per Masuhara J. )

[35]        
The provisions of subrules 4, 5 and 6 of Rule 9-1 are somewhat ambiguous
with respect to the procedure to be followed in dealing with an offer to settle.
The use of the phrase “may consider” in subrule 4 suggests that the court may
consider whether an offer to settle should be considered at all as a threshold
question. This would suggest that I could decide not to consider the offer
thereby making it unnecessary to consider subrules 5 and 6.

[36]        
However, on its face subrule 5 appears to apply to all offers to settle
as defined in subrule 1. This would suggest that once an offer to settle has
been made the court is required to enter into a consideration of the consequences
of that offer pursuant to subrules 5 and 6.

[37]        
In Dodge, Masuhara J. appears to have proceeded on the basis that
Rule 37B(4), which was identical to Rule 9-1(4), did give the court the
discretion to refuse to consider an offer if it considered that the offer was
one that the plaintiff could reasonably refuse. At paragraph 18 he states as
follows:

[18]  Since I have decided
that it was unreasonable for the defendant to expect that the plaintiff would
accept the offer within two days, the policy underlying Rule 37B, which is to
encourage the settlement of disputes by rewarding the party who makes a reasonable
offer and penalizing the party who declines to accept such an offer, is not
engaged. Accordingly, as permitted by Rule 37B(4), I decline to consider the
defendant’s offer to settle in exercising my discretion relating to costs.      [Emphasis
in original.]

[38]        
In Masuhara J.’s view, subrules 5 and 6 had no application once the
court decided that it would not consider the offer. In his words (from
paragraph 19 of his reasons) Rule 37B, now Rule 9-1, is not engaged once a
judge decides not to consider an offer pursuant to subrule 4. It is of course obvious
from his reasons that the court must act judicially and exercise its discretion
not to consider the offer only if proper grounds exist for so doing. In fact,
Masuhara J. began his analysis by considering Rule 37B(6)(a). However, having
decided that the offer was not one that the defendant should reasonably have expected
the plaintiff to accept, he found it unnecessary to consider Rule 37B(6) any
further.

[39]        
I do not find it necessary to reach any final conclusion with respect to
this question. In these reasons I will proceed on the assumption subrule 5 is
applicable to the offer to settle in this case and that I should consider all
the suggested criteria set out in subrule 6 in deciding what order to make. Subrule
5 permits the court to award costs for all of the steps taken in the proceeding
after the offer to settle to which the plaintiff would have been entitled to
had there been no offer. If that option is adopted the result is the same as it
would have been if the offer had not been considered at all. I will therefore
proceed to consider each of the enumerated criteria set out in subrule 6.

[40]        
The first question under Rule 9-1(6) is whether the offer was one which
ought reasonably to have been accepted, either on the date of the offer to
settle or on any later date.

[41]        
Rule 9-1(6)(a) encompasses two considerations. The first is the content
of the offer. The second is the temporal consideration of whether the plaintiff
acted reasonably in failing to accept the offer while it was open for
acceptance.

[42]        
In this case, the offer to settle was delivered on June 27, 2011.
According to the affidavit of the plaintiff, it was delivered to her counsel
late on the afternoon of that day, that is at approximately 3:30 p.m. It is
agreed that the offer was open for acceptance at any time before 4:00 p.m.
Pacific Standard Time on June 30, 2011.

[43]        
The first question is whether the plaintiff was given adequate time to
consider the offer.

[44]        
As pointed out by Masuhara J. in Dodge, there is no set time that
has been considered reasonable for acceptance. However, in Coquitlam (City)
v. Crawford, 2008 BCSC 1507, 173 A.C.W.S. (3d) 387, and Arnold v.
Cartwright Estate, 2008 BCSC 1575, 86 B.C.L.R. (4th) 99, the courts
held that seven days was a reasonable period of time within which to consider
an offer.

[45]        
In my view, the offer in this case raised a number of issues that
required consideration. These included the effect that the offer would have had
on the plaintiff’s right to seek a full indemnity for her costs, the likelihood
that the plaintiff could reasonably expect to recover some damages and the term
that the plaintiff be required to pay costs of the action at Scale B from the
date of delivery of the offer. This particular provision meant that although
the offer was open for acceptance until June 30, 2011, the amount recoverable
pursuant to the offer was in fact declining with each passing day.

[46]        
I also think it relevant that the plaintiff was elderly and was looking
to the advice of family members and her counsel with respect to the reasonableness
of the offer. I accept that the time and energy of counsel would have been primarily
devoted to trial preparation and they would have had a limited opportunity to
consider the ramifications of the offer.

[47]        
In addition, in this case there were certain ambiguities in the offer.
The first was that the offer required the plaintiff to deliver a full and final
release “in respect of the defendants”. The exact wording of this provision of
the offer is as follows:

On acceptance of this offer, the plaintiff
agrees to execute and deliver a Full and Final Release in respect of the
defendants and to consent, by her solicitor, to a consent dismissal order.

However, no form of release was included with the
settlement offer. It is common ground that in addition to the claims being
advanced in this action, the plaintiff was entitled to bring a claim against
the defendants pursuant to the Family Compensation Act, RSBC 1996,
c. 126 in respect of the death of her husband. The offer however, does not
clearly state that the plaintiff’s claim under the Family Compensation Act
is unaffected by the release.

[48]        
In addition, page one of the offer provides that the parties
shall be entitled to 50% of assessable costs and disbursements in accordance
with the offer to settle whereas page two of the letter states that the
plaintiff is entitled to 50% of her costs of the action to the date of delivery
of the offer and that the defendants will be entitled to 100% of their costs
thereafter. There is also an obvious typographical error on page two which
states that the defendants are entitled to 1000% of their costs after the date
of the offer, but I give no weight to that error in assessing this issue.

[49]        
The defendant argues that any ambiguities in the offer could easily have
been resolved by discussion between counsel. However, the terms and conditions
to the settlement offer specified that the offer contained in the letter could
only be accepted unconditionally and only by delivering to the defendants a
written notice of acceptance.

[50]        
I have concluded that given the short period of time within which the
offer was open for acceptance, the complexity of the issues in this case, the
ambiguities contained in the offer to settle and the close proximity of the
offer to the commencement of trial, the plaintiff did not act unreasonably in
declining to accept the offer.

[51]        
I have also considered the relationship between the terms of the offer
and the final judgment of the court. It is quite clear that the amount of
damages recovered by the plaintiff is less than the amount of damages that the
plaintiff would have recovered under the offer. However, the damages recovered were
not substantially less than the amount of the settlement offer. In addition, the
settlement offer required the plaintiff to absorb 50% of her costs and
disbursements to the date of the offer and pay costs of the defendants thereafter.
Given my finding that the plaintiff is entitled to 2/3 of her costs, it is not at
all clear to me that the amount actually recovered by the plaintiff is less
than the amount offered.

[52]        
I have also given consideration to the relative financial circumstances
of the parties. The plaintiff has very limited means. The defendants are
covered by insurance and in a very real sense, it is the defendants’ insurer
who is at risk in this action. I am entitled to take this factor into
consideration in exercising my discretion: see Smith v. Tedford, 2010
BCCA 302, 7 B.C.L.R. (5th) 246. Given these circumstances, it is obvious that
the relative financial consequences of depriving the plaintiff of her costs are
much greater to the plaintiff than to the defendants.

[53]        
There is one other factor that I have taken into account. In this case,
the reason that the amount recovered by the plaintiff did not exceed the amount
offered by the defendant turns to a large extent on my findings that the
plaintiff would rely on her family for most of the cost of future care. Given
my finding in that regard, the authorities made it clear that my award for cost
of future care had to be reduced to take into account that circumstance. This
resulted in a significant benefit to the defendants in terms of the quantum of
the award for cost of future care.

[54]        
Taking all of the above considerations into account, I have decided that
the plaintiff should be awarded the costs to which she would have been entitled
had the offer not been made.

[55]        
The only remaining issue in this case relates to the defendants’
submission that the plaintiff should not be entitled to any costs with respect
to Dr. Hunt’s report or attendance at trial. The defendants submit that Dr.
Hunt’s evidence and short-comings as a witness disqualifies his evidence from
being a proper disbursement incurred by the plaintiff. In my view, the issue of
whether the cost of Dr. Hunt’s report and attendance is a proper disbursement
and should be determined by the Registrar on an assessment of the plaintiff’s
costs pursuant to Rule 14-1. The Registrar is uniquely well placed to determine
the appropriateness of any disbursements, including disbursements for expert
evidence.

[56]        
I therefore decline to make any order with respect to the
appropriateness and recoverability of disbursements incurred in obtaining Dr.
Hunt’s report and attendance at trial.

[57]        
The plaintiff is entitled to her costs of this application on Scale B.

 “Sewell J.”