IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140128

Docket: M092046

Registry:
Vancouver

Between:

Glenn Murphy

Plaintiff

And

Silas Obrien

Defendant

Before:
The Honourable Mr. Justice Steeves

Reasons for Judgment

Introduction

[1]            
This is a decision on costs, following on a judgment dated March 4,
2013.

[2]            
The origins of this matter began with a motor vehicle accident on May
17, 2007. The plaintiff received injuries to his neck and back and he
subsequently developed headaches. He had a pre-existing left knee disability
that affected the plaintiff’s employability and he had been taking significant medication
for the knee problems before the May 2007 accident, including codeine based
medication.

[3]            
In the March 4, 2013 judgment I found that the plaintiff had ongoing
problems with his neck that were a result of the May 2007 accident. I also
found that the pre-existing knee problems and medication use were of some
significance in his ongoing symptoms. It was also a significant factor in his
problems obtaining work.

[4]            
In the March 4, 2013 judgment I awarded the damages to the plaintiff as
follows:

[5]            
There is now a dispute about costs.

[6]            
The defendant says he is entitled to costs because he made a reasonable
offer before trial that was unreasonably rejected by the plaintiff. Further,
the plaintiff’s claim for loss of future earning capacity and other claims were
significantly reduced in the March 2013 judgment. Put another way, according to
the defendant, he was substantially successful in the issues at trial.

[7]            
According to the plaintiff, he is entitled to costs because he was
substantially successful.

Analysis

[8]            
Costs are governed by, first of all, Rule 57(9):

Costs to follow event

(9) Subject to subrule (12),
costs of a proceeding must be awarded to the successful party unless the court
otherwise orders.

[9]            
There is also Rule 57(15):

Costs of whole or part of proceeding

(15) The court may award costs

(a)        of a proceeding,

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

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

and in awarding those costs the
court may fix the amount of costs, including the amount of disbursements.

[10]        
Costs have been discussed in a number of previous decisions. The parties
rely on the following decisions on costs and other issues related to this
application: Chaster (Guardian ad Litem of) v. LeBlanc, 2008 BCSC 47; Everett
v. Solvason, 2012 BCSC 140; Anderson v. Dwyer, 2010 BCSC 526; Lumanlan
v. Sadler, 2009 BCSC 142; Hartshorne v. Hartshorne, [2011] B.C.J.
No. 107; Nemoto (Litigation guardian of) v. Phagura, 2013 BCSC 370; Gatzke
v. Sidhu, 2011 BCSC 1214; Payne v. Lore, 2010 BCSC 1313; Currie
v. Thomas Estate, [1985] B.C.J. No. 1922 (B.C.S.C.); Sartori v. Gates,
2011 BCSC 419; and Narain v. Gill, 2012 BCSC 1468.

[11]        
Although the term is not used in the Rules, previous decisions have
generally awarded costs to the party who has been “substantially successful” (Chaster,
para. 27). A “rough and ready guide” is that substantial success has been held
to be 75% or better (Chaster, para. 29; citing Fotheringham v. Fotheringham,
2001 BCSC 1321, para. 45; appeal denied, 2002 BCCA 454).

[12]        
And the purposes of costs have been summarized as: deterring frivolous
actions or defences, encouraging decisions that reduce the duration and expense
of litigation, encouraging settlement whenever possible and requiring litigants
to make a careful assessment of their cases (Sartori, para. 56).

[13]        
In the subject application the defendant relies on an offer he made
before trial that was about $19,000 less than the amount of the total damages
in the March 2013 judgment. I am asked to find that the plaintiff’s refusal to
accept that offer is a fact that supports the defendant’s application for
costs.

[14]        
In my view all that can be said about the defendant’s pre-trial offer is
that it was not enough to be the basis of an application for double costs. Other
decisions have rejected applications for costs because pre-trial offers were
within a “knife’s edge” of making a trial unnecessary (Narian, paras.
24-27). Finally, the plaintiff’s refusal of the defendant’s offer was apparently
justified in light of the amount of the final judgment.

[15]        
The defendant also says that the plaintiff was substantially unsuccessful
at trial because the amounts of his claims for damages were not accepted. However,
the courts should be cautious about applying hindsight to equate a wrong
decision with being unreasonable and they should be cautious about parsing out
degrees of success (Sartori, para. 60, 67-8, 72).

[16]        
It is true that the plaintiff was not totally successful in his claims
for damages. And it is true that the plaintiff’s claim for damages was reduced
because his knee problems were not found to be part of the injuries from the
accident at issue. However, I conclude that the plaintiff was entitled to make
the claim he made and test his case in court. In summary, he was substantially,
albeit not entirely, successful in his claims.

[17]        
The defendant’s application for costs is denied. The plaintiff is
entitled to ordinary costs.

“Steeves,
J.”