IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131119

Docket: M114909

Registry:
Vancouver

Between:

Huanlian Zhang

Plaintiff

And

Alvi Christopher
Heikkila, Timothy Siltberg,

South Coast
British Columbia Transportation Authority

also known as
Translink, Coast Mountain Bus Company Ltd.,

and Insurance
Corporation of British Columbia

Defendants

Before:
District Registrar Cameron

Oral Reasons for Decision

[1]            
This is an assessment of costs following the settlement of personal
injury litigation.

[2]            
The Plaintiff, Huanlian Zhang, was a passenger on a transit bus and when
that bus came to a quick stop she fell striking her head on the fare box.  She
sustained soft tissue injuries and some cognitive difficulties following this
accident that occurred on November 6, 2009.

[3]            
Counsel was retained and in the ordinary course commenced this action on
the Plaintiff’s behalf.

[4]            
On this assessment three disbursements for medical legal reports are in
issue.

[5]            
Plaintiff’s counsel obtained two reports from the family physician, Dr.
Sun.  The first of those reports was provided on November 13, 2011.  Ms. Kullar
did not object to the cost of this report or the other two reports in issue but
submitted that all three reports were obtained as a result of excessive zeal or
and that they should be disallowed.

[6]            
The first report from Dr. Sun provides an extensive review of the Plaintiff’s
injuries and her continuing partial disability.  In the final paragraph of the
report, Dr. Sun opines:

Her prognosis for full and complete recovery in the
foreseeable future is guarded at this time.  It is usually seen that soft
tissue injuries which persist for greater than two years will become a
permanent source of chronic pain and partial disability.  It is anticipated she
may continue to have persistent left neck and shoulder pain with periodic
exacerbations.  She may not be able to return to her previous occupation as a
child care worker, which requires lifting and carrying babies and small
children.  There is a risk of future medical treatment and costs, including
prescription drugs such as analgesic medications, muscle relaxants,
antidepressants, sedatives, as well as forms of therapy, which includes
physiotherapy, massage and chiropractic treatments.

[7]            
Ultimately, Plaintiff’s counsel made the determination that it was
necessary and proper to obtain a report from a specialist in physical medicine
and rehabilitation.  Dr. Kiaii was retained for that purpose, and she provided
a report dated April 20, 2012.

[8]            
Dr. Kiaii was well suited to provide an opinion respecting all of the
injuries sustained by the Plaintiff based upon her qualifications that included
the assessment, diagnosis and treatment of musculoskeletal problems and also
the assessment of patients with traumatic brain injuries.  In addition, Dr.
Kiaii had a subspecialty dealing with electrodiagnostic medicine, and in this
case one of the Plaintiff’s ongoing complaints was some tingling and numbness
in her hand.

[9]            
The Plaintiff’s examination for discovery was conducted on December 18,
2012.  A trial date was set for March 31, 2014.  Plaintiff’s counsel examined
the operator of the bus for discovery in February 2013 and, after considering
his evidence, concluded that liability was going to be difficult to prove as
against any of the Defendants.

[10]        
An updated report was obtained from Dr. Sun on February 18, 2013.  That
report confirmed that the Plaintiff continued to suffer from persistent left
neck and shoulder pain. Dr. Sun’s prognosis had not changed since her earlier
report.

[11]        
Defence counsel had made an offer to settle shortly after the action was
commenced in 2011 for the sum of $11,000.  Following the examinations for discovery
and after the three medical reports had been obtained, there were further
discussions with respect to settlement, and the matter settled in March 2013.

[12]        
Given that the trial was set for March 2014, Plaintiff’s counsel had not
yet served either of the two reports authored by Dr. Sun, or the report from
Dr. Kiaii by the date of settlement.  Notably, the ICBC adjuster had not
requested these reports before settlement was concluded.

[13]        
Ms. Kullar submitted that as liability was a very significant hurdle for
the Plaintiff to overcome that a properly proportional preparation of the case
should have resulted in a decision not to incur the expense for any of the
three reports until much closer to the trial date.

[14]        
The principles that are applicable to this assessment are well
summarized by Master MacNaughton, sitting as Registrar, in Turner v.
Whittaker, 2013 BCSC 712, as follows:

1.         Rule 14-1(5) requires an assessing officer to
determine which disbursements were necessarily or properly incurred in the
conduct of a proceeding and to allow a reasonable amount for those
disbursements.

2.         The consideration of whether a disbursement was
necessarily or properly incurred is case-and circumstance-specific and must
take into account proportionality under Rule 1-3.

3.         The time for assessing whether a disbursement was
necessarily or properly incurred is when the disbursement was incurred not with
the benefit of hindsight. (Van Dael v. Van Dael, 56 B.C.L.R. 178)

4.         A necessary disbursement is one which is essential
to conduct litigation; a proper one is one which is not necessary but is
reasonably incurred for the purposes of the proceeding. (McKenzie v. Darke,
2003 BCSC 138)

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

[15]        
In my view, in evaluating whether or not it was necessary or proper to
incur these disbursements for the medical legal reports, one must consider more
broadly what should be done in the preparation of the Plaintiff’s case.

[16]        
To be properly equipped to advise a client on the merits of settlement
in circumstances such as existed in this case competent counsel not only has to
investigate and assess the liability issue but also consider the likely range
of damages.  It would be expected that competent counsel would obtain medical opinions
in a timely fashion and that is what occurred in this case.

[17]        
Plaintiff’s counsel obtained the first report from the general
practitioner approximately two years after the accident and in my view that
report was properly obtained at that time.

[18]        
The report documented concerns respecting the Plaintiff’s future in
terms of her employability and continuing physical limitations resulting from
the injuries sustained in the accident.

[19]        
After reviewing this report, Plaintiff’s counsel then decided to obtain
an opinion from a specialist in physical medicine being Dr. Kiaii, who provided
her report dated April 20, 2012.  That report provided an evaluation of the Plaintiff’s
level of function, her symptomatic complaints and some prognosis and
recommendations to follow.  Again, obtaining that report at that time was, in
my view, proper for the advancement of the Plaintiff’s case.

[20]        
The last report in issue was an updated report from Dr. Sun dated
February 18, 2013.  While that report was obtained about sixteen months following
the first report, given the Plaintiff’s ongoing symptoms and the need to have a
more current assessment of those symptoms for the purposes of preparing for
trial or for settlement, I do not find that it was extravagant or a sign of
excessive caution that Plaintiff’s counsel obtained that report when she did.

[21]        
Fundamentally, I am keeping in mind that in a situation such as this, the
assessing officer ought not to second guess competent counsel doing a competent
job because other counsel might have handled the matter differently.

[22]        
Having found that these three disbursements were necessarily or properly
incurred and as the amount for each of them is not challenged, they will be
allowed as presented.

“District
Registrar Cameron”