IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130711

Docket: 1036297

Registry:
Prince George

Between:

Roger Edward White

Plaintiff

And

Melody Reich

Defendant

Before:
Master Caldwell

Reasons for Judgment

[1]            
This matter involves the assessment of a Bill of Costs arising in the
context of a motor vehicle case which settled very shortly before trial.

[2]            
The actual costs have been agreed.  The only major issue is whether the
various accounts and payments to a cardiologist, Dr. Isserow, should
qualify as proper disbursements.

[3]            
The only other disbursement at issue is a $500 booking fee charged by
Dr. McKenzie which appears to be a flat fee charged to simply have his
office diarize him to testify at the trial.  Such charge is arbitrary and not
reasonable on its face; absent specific evidence justifying it I would disallow
that charge in its entirety.

[4]            
The charges related to Dr. Isserow must be put in the context of
this particular plaintiff and action.

[5]            
The plaintiff was 49 years old at the time of the motor vehicle accident
in December of 2008.  The majority of his injuries complained of clearly
related to orthopedic matters, particularly his knee.  Dr. McKenzie was
retained to deal with those matters.

[6]            
The complicating factor was that the plaintiff had, at the time of the
accident, a serious history of heart problems including two heart attacks.

[7]            
Following the accident the plaintiff was able to obtain employment in
the field of security in Northern Alberta.  Unfortunately he suffered a third
heart attack while alone and working some distance from civilization and
medical assistance.  He was required to drive himself back to assistance where
he received medical treatment for the heart problems.

[8]            
The plaintiff was unable to, or at least did not, return to his work in
Northern Alberta following his third heart attack.

[9]            
While in Alberta, and following the third heart attack, the plaintiff
was attended by a cardiologist, Dr. Chan, of Edmonton Cardiology
Consultants.  When plaintiff’s counsel requested that Dr. Chan provide a
full medical-legal report his responsive letter indicated basically that he was
the attending cardiologist who dealt with the plaintiff on admission, that he
diagnosed the problem, performed the necessary surgery and recommended that
upon release the plaintiff enrol in an outpatient cardiac rehabilitation
program at Glenrose Hospital.

[10]        
In short, Dr. Chan indicated that he hadn’t seen the plaintiff
since his release and thus had no opportunity to assess him or his cardiac
condition.

[11]        
Counsel at the assessment indicated that Dr. Chan advised that he
was reluctant to become further involved in the plaintiff’s litigation as he
was located out of province.

[12]        
Based upon his communications with Dr. Chan, plaintiff’s counsel
decided to retain a British Columbia based cardiologist; that led him to
Dr. Isserow.

[13]        
Dr. Isserow examined the plaintiff and provided his counsel with
his medical-legal report.  Plaintiff’s counsel claimed privilege over that
report and it was listed as privileged but not provided to defence counsel. 
Based in part on what was contained in the report, the matter settled, almost
literally, on the courthouse steps.

[14]        
It is now agreed that the plaintiff was not disabled from returning to
work in Northern Alberta because of his orthopedic complaints which arose from
the motor vehicle accident but rather from his concern and fear that he would
suffer a fourth heart attack while alone and that he might not survive that
event.

[15]        
The evidence, including that of Dr. Isserow, established that the
heart condition was in no way related to the motor vehicle accident and that in
any event, if the plaintiff were to follow a regime of rehabilitation and
medication he could seriously reduce the risk of further heart problems.  In
short, the evidence established that with proper actions, there was no physical
reason for the plaintiff not to return to his Northern Alberta position.

[16]        
On the basis of this information, plaintiff’s counsel continued
negotiations and was able to reach resolution short of trial as noted above.

[17]        
Defence counsel simply says that Dr. Chan provided very similar
information in his letter, that the defence agreed to admit Dr. Chan’s
letter as an opinion and that ultimately Dr. Isserow did little other than
confirm that the plaintiff’s loss of work was not related to the accident.

[18]        
Plaintiff’s counsel says that it was his professional duty to follow up
on Dr. Chan’s initial letter by obtaining proper, admissible and if
necessary, compellable evidence of a cardiologist.  Although the evidence
ultimately did not support the plaintiff’s claim, he says that it assisted in
achieving settlement and that it was reasonable and proper to commission the
investigation and opinion at the time it was requested.

[19]        
The applicable legal principles were canvassed and summarized recently
by Master MacNaughton in Turner v. Whittaker, 2013 BCSC 712 at
para. 5.  In particular it is noted that the test is not one of hindsight
and that a proper disbursement may be one which is ultimately not necessary but
which was reasonably incurred for the purposes of the proceeding.

[20]        
In this regard, counsel for the defendant acknowledged that if the
report had determined that the most recent heart problems had been caused by or
contributed to by the accident and that that was the cause of the plaintiff’s
being unable to return to work, there would be no question that the report was
not only reasonable and proper but in fact necessary to the proper conduct of
the litigation.

[21]        
In all of the circumstances, I am of the view that the course of
investigation with Dr. Isserow, which culminated in and included his
report, was reasonable and proper at the time that it was undertaken and
accordingly the disbursements which relate to Dr. Isserow are allowed as
presented.

[22]        
Costs of the assessment are to the plaintiff.

“Master Caldwell”