IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141229

Docket: M095861

Registry:
Vancouver

Between:

Jamie Kimber

Plaintiff

And

Nyuk Yeut Wong and
Jyh Sang Tong

also known as
Jackson Tong

Defendants

Before:
The Honourable Mr. Justice Pearlman

Reasons for Judgment

(Re: Costs)

INTRODUCTION

[1]           
In this action for damages for personal injuries sustained in a motor
vehicle accident, the plaintiff, Jamie Kimber, applies for an order awarding
him 100% of his costs and disbursements.

[2]           
Alternatively, the plaintiff seeks an order for 100% of his costs and
disbursements until the liability trial, and for 74% of his costs thereafter. 
At trial, the Court apportioned liability for damages equally between the
plaintiff and the defendants.  The plaintiff arrives at 74% by adding to the
50% apportionment another 24% for the amount by which the apportionment at
trial exceeded the defendants’ offer to settle liability on the basis they were
26% at fault.

[3]           
The defendants argue that s. 3(1) of the Negligence Act,
R.S.B.C. 1996, c. 333 limits their obligation to pay the plaintiff’s costs
to the same proportion as their liability for damages and that the plaintiff
has failed to establish that an award of 50% of his costs and disbursements would
result in an injustice in this case.

BACKGROUND FACTS

[4]           
On June 14, 2008, Mr. Kimber sustained injuries, including a
fractured pelvis, a fractured wrist, fractured teeth, facial scaring and a
mild-traumatic brain injury when his bicycle collided with a motor vehicle
driven by the defendant Nyuk Yeut Wong.  Mr. Kimber was attempting to ride
through the intersection of 49^th Avenue and Ross Street in
Vancouver, British Columbia when he was struck by the defendant’s left-turning
vehicle.

[5]           
At a case planning conference held on February 23, 2012, Mr. Justice
Masuhara ordered that the issues of liability and damages be severed and that
the trial proceed on the issue of liability only.

[6]           
On March 22, 2012, the defendants served the plaintiff with a formal
offer to settle liability, based on an apportionment of liability at 26%
against the defendants and 74% against the plaintiff.

[7]           
The plaintiff did not accept the defendants’ offer.  This Court heard
the trial on the issue of liability from April 30 to May 2, 2012.  Mr. Kimber
was the only witness called for the plaintiff.  The defendants called five
witnesses, including Ms. Wong, an engineer, and three eyewitnesses.  At
trial, the plaintiff and the defendants each took the position that the other
party was entirely at fault.

[8]           
By reasons for judgment delivered on May 9, 2012, this Court apportioned
liability 50% to each of the plaintiff and the defendant.

[9]           
On June 13, 2012, the defendants served a formal offer to settle the
plaintiff’s claim for $150,000 "plus costs in accordance with this offer
to settle".  The defendants’ offer to settle provided:

The plaintiff is entitled to his
costs of the action at Scale B and necessary and reasonable disbursements to
the date of delivery of this offer assessed in accordance with Rule 14-1 of the
Supreme Court Rules (B.C. Reg. 168/09)

[10]       
On July 11, 2013, the parties agreed to settle the plaintiff’s claim for
$184,500.  That amount accounted for the 50% apportionment of liability to the
plaintiff.  Costs and disbursements were to be agreed or assessed at a later
date.

[11]       
The parties were unable to agree on the plaintiff’s entitlement to costs
and disbursements.

DISCUSSION AND ANALYSIS

[12]       
The usual rule that a party is liable for costs in the same proportion
as his or her liability for damages is set out in s. 3(1) of the Negligence
Act:

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.

[13]       
Where, as here, the defendant has not suffered any damage, the plaintiff
has no liability for costs and the defendant is liable for the plaintiff’s
costs in the same proportion as the defendant is liable for the plaintiff’s
damages: Flatley v. Denike (1997), 32 B.C.L.R. (3d) 97 (C.A.), at paras. 21,
22.

[14]       
The court has a broad discretion to depart from the usual rule and to
award a plaintiff more than his or her proportional share of costs where there
are reasons connected to the case to do so.  The court’s principal
consideration is whether injustice will result from adhering to the usual rule:
 Moses v. Kim, 2009 BCCA 82 at para. 70; Forsyth v. Sikorsky
Corp., 2002 BCCA 231.

[15]       
In determining whether the imposition of the general rule under s. 3(1)
of the Negligence Act would produce an unjust result, the court may
consider the nature and conduct of the action and whether there was anything "untoward"
in the conduct of the litigation: Plensky v. DiBiase, 2012 BCSC 1558 at
paras. 18-19; Rimmer (Guardian ad litem of) v. Langley (Township),
2007 BCSC 340 at paras. 22, 25.

[16]       
Here, both parties conducted the three-day liability trial fairly and
efficiently.  The defendants did not engage in any conduct that was untoward,
or calculated to delay the resolution of this claim.

[17]       
In Moses v. Kim, 2007 BCSC 1820, Gray J. summarized the factors
for the court’s consideration in exercising its discretion where a party seeks
costs on a basis other than that provided in s. 3(1) of the Negligence
Act:

[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.

[18]       
Moses was varied on appeal.  In Moses v. Kim, 2009 BCCA 82
at para. 76, the Court held that the trial judge erred in considering the
amount of the plaintiff’s legal fees as a relevant factor in departing from the
usual rule, and that the trial judge ought also to have considered the defendants’
degree of success on their claim for contributory negligence.  However, the
Court of Appeal did not take issue with Gray J.’s summary of the factors to be
considered when determining whether the court should exercise its discretion to
depart from the usual rule.

[19]       
In Moses, the plaintiff suffered very serious injuries, for which
damages were assessed at $623,000.  Because the plaintiff was 65% liable for
the accident, he recovered judgment for $215,000.  Under the "usual rule",
the defendants were only liable for 35% of his costs.  The plaintiff’s taxable
costs and disbursements totalled $84,500.  If the plaintiff only received 35%
of his costs, his total recovery would have been about $127,000.  In these
circumstances the trial judge awarded the plaintiff 90% of his costs, varied to
75% on appeal.

[20]       
In Logeman v. Rossa, 2006 BCSC 692, the plaintiff
recovered 100% of her costs, although the court found she was 35% liable for
her damages.  Significant factors in the Court’s exercise of discretion were
the defendants’ "blatant untruthfulness", and their choice of a jury
trial, which had increased the plaintiff’s costs.

[21]       
In Siewert v. Elden, 2008 BCSC 88, the jury found
the plaintiff to be 50% at fault following a 15-day trial.  The Court ordered
the defendant to pay 90% of the plaintiff’s costs and 100% of her disbursements. 
The defendant had taken an unreasonable position in contesting liability, and
the plaintiff had been put to significant expense to prove her damages.

[22]       
In Wong-Lai v. Ong, 2012 BCSC 1569, following a 10-day
trial on liability and quantum, the Court found the defendant to be 25% liable
for an accident in which the plaintiff suffered severe injuries.  The plaintiff
faced significant difficulties in establishing liability.  Damages were
assessed at $343,253, but after apportionment, the plaintiff recovered judgment
for $85,818.  The Court noted that if the plaintiff was required to bear 75% of
her costs and disbursements, her recovery would be reduced by 63%.  In the
result, the Court ordered the defendant to pay 2/3 of the plaintiff’s costs and
disbursements.

[23]       
In each of these cases the court exercised its discretion based on the
particular circumstances relating to the nature and conduct of the action.

[24]       
Having regard to the nature and conduct of this action, I must determine
whether I should exercise my discretion to depart from the usual rule, and
order that the plaintiff recover more than 50% of his costs, on the ground that
injustice would result from application of the usual rule.

[25]       
Here, the parties made their submissions based on the factors identified
in Moses.  Accordingly, I will address each of those factors.

The seriousness of the
plaintiff’s injuries

[26]       
Mr. Kimber suffered serious injuries including multiple fractures,
a mild traumatic brain injury and some loss of memory, facial scarring and
psychological stress.  He was formerly a competitive triathlete.  As a result
of the defendants’ negligence, he has been compelled to significantly reduce
his athletic activities.  Although he continues to work as a construction
contractor, he does so at a reduced capacity.  The settlement of this action in
the amount $369,000 before the 50% liability deduction demonstrates the
seriousness of the plaintiff’s injuries and their significant impact upon his
life.  This factor weighs in favour of the plaintiff’s position.

Difficulties faced by the
plaintiff in establishing liability

[27]       
The plaintiff submits that he faced substantial challenges in
establishing the defendants’ negligence.  Mr. Kimber recalled approaching
the intersection but testified that his last memory before the collision was of
getting to within one or two car lengths of the intersection.  The plaintiff
was not able to provide any evidence about what decisions he made, or whether
he was able to take any evasive action when he saw the defendant’s vehicle
turning across his path.  Counsel for the plaintiff also submits that while Mr. Kimber
was the only witness to testify in his case, the defendants were able to call
three eyewitnesses, each of whom gave evidence concerning Mr. Kimber’s
actions very shortly before the accident.  The defendants also called a road
traffic engineer who gave expert evidence regarding visibility and reaction
time.

[28]       
As the defendants point out, this was not a case where the plaintiff had
no memory of the accident.  Mr. Kimber did recall his approach to the
intersection, his speed, the weather conditions, traffic volume and movements,
and where he was riding in relation to both the parked vehicles on his right
side and the travelling vehicles to his left.

[29]       
The questions of fact and law relating to the assessment of liability
were not unusually difficult.  For the plaintiff, the issue was whether by
passing on the right of stopped vehicles and entering an intersection where he
knew oncoming vehicles might be turning left, he put himself at risk of
injury.  For Ms. Wong, the question was whether, in making a left turn
when she was unable to see beyond the stopped vehicles, she put any traffic
proceeding through the intersection, including any oncoming cyclists, in
danger.

[30]       
I find that the difficulty faced by the plaintiff in establishing
liability is a neutral factor.

The
fact that in settlement negotiations the amount offered was substantially below
the ultimate amount

[31]       
By their offer to settle, the defendants proposed an apportionment of
74% liability against the plaintiff and 26% liability against the defendants. 
As counsel for the plaintiff submits, the result at trial was almost double the
percentage of liability apportioned against Ms. Wong than the defendants
had proposed before trial.  However, the plaintiff’s position before and at
trial was that he had no liability.  The trial also resulted in an assessment
of 50% liability against Mr. Kimber.  In my view, this factor is neutral.

Whether the plaintiff was
forced to go to trial to obtain recovery

[32]       
Here, where the defendants offered to settle on the basis that they
would be apportioned 26% liability, the plaintiff was not forced to go to trial
in order to obtain any recovery in this action.  However, the defence offer
represented a significantly lower recovery than the result obtained at trial.

Costs of getting to trial

[33]       
In his draft bill of costs, the plaintiff claims disbursements totalling
$44,429.19 incurred to the time this action settled.  Of that amount, only
approximately $13,500 related to liability.  Viewed in isolation, the costs
incurred by Mr. Kimber to get to trial on the issue of liability were not
substantial.  However, the plaintiff’s disbursements also include approximately
$24,000 incurred for expert medical reports in order to prove damages.  Most of
those disbursements were incurred before the defendants made their offer to
settle liability and before the commencement of the liability trial.  I accept
the plaintiff’s submission that he was required to obtain expert medical
evidence to establish the extent of his injuries and that, in the absence of
that evidence, it is unlikely that he would have achieved the settlement
concluded in this case.  While the disbursements for the medical experts were
not costs of getting to trial on the liability issue, they were nonetheless
incurred by the plaintiff in order to obtain the result for which he brought
this action – the recovery of damages for his injuries.

[34]       
In my view, in these circumstances it would be unreasonable to disregard
the disbursements incurred by the plaintiff for expert medical advice when
considering the costs he incurred in order to resolve this litigation.  The
plaintiff’s total expenditure for disbursements was significant.  I say this
recognizing that the plaintiff’s bill of costs has not yet been assessed by the
registrar.

[35]       
However, the plaintiff has not led any evidence to show that his costs,
either for getting to trial on liability, or to settlement, were out of the
ordinary for an action of this nature.  In the absence of such evidence, I find
this factor to be neutral.

The difficulty and length
of trial

[36]       
This was a three-day trial by judge alone on the issue of liability
only.  The plaintiff completed his case in less than one day.  Only one expert
witness was called and cross-examined.  The trial was short, efficiently
conducted, and of no more than ordinary difficulty.  This factor weighs against
a departure from the usual rule.

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

[37]       
The plaintiff’s draft bill of costs at Scale B, and disbursements,
totalling $66,482 has not yet been assessed by the Registrar.

[38]       
The plaintiff submits that based on the assessment of damages agreed by
the parties in settlement ($369,000 before apportionment), he recovered an
additional $88,560 ($369,000 x 24%) as a result of his decision to proceed to
trial on liability.  Mr. Kimber says that outcome is in proportion to the
disbursements he incurred to achieve the result with respect to both liability
and damages.  The plaintiff submits that if costs are apportioned according to
liability his recovery of disbursements would be limited to approximately
$22,000, which would unjustly erode his success at trial.

[39]       
As the defendants submit, any apportionment of liability under the usual
rule in a case where the plaintiff is contributorily negligent will result in
some disparity between the costs incurred by the plaintiff and the costs he or
she recovers.  Unless the application of the usual rule will result in an
injustice, partial recovery of costs, in proportion to the defendants’
liability for damages, is the result contemplated by s. 3(1) of the Negligence
Act.

[40]       
The defendants dispute the plaintiff’s bill of costs.  They take issue
with the numbers of units claimed under various tariff items, and with
disbursements claimed for photocopying, scanning, investigations and interest
on disbursements.  The defendants say the plaintiff is entitled to
approximately $47,000 in costs and disbursements before the 50% reduction for
contributory negligence.  The defendants propose that in considering this
factor, the Court adopt a figure halfway between the parties’ positions, which
would result in an "effective bill of costs" of approximately $56,500
incurred by the plaintiff in order to obtain the result in this action.  Counsel
for the defendants submits that 50% of that amount, or about $28,000 does not
bear an unreasonable relationship to the plaintiff’s costs.

[41]       
The assessment of costs will be a matter for the registrar, who, with
full submissions from the parties, will be in a better position to determine
the contested tariff items and the disputed disbursements, including the claim
for $2,620.85 for investigations.  For the purposes of this application I will
assume the plaintiff will recover 50% of his costs and disbursements, in an
amount of up to $33,000.  That amount does not bear an unreasonable
relationship to the plaintiff’s costs of obtaining his damages settlement of
$184,500.

The positions taken by the
parties at trial

[42]       
Each party took the position that the other was entirely at fault.  Both
parties had arguable cases.  The defendants are not to be penalized for
exercising their right to proceed to trial and to require the plaintiff to
prove his case: Rimmer at paras. 22 and 27.  In the result, the
defendants achieved some success on their defence of contributory negligence.

[43]       
Similarly, where the plaintiff had an arguable case it was not
unreasonable for him to decline the defendants’ offer to settle, and to go to
trial.

[44]       
I find this factor is neutral.

Whether the defendants
made any settlement offers

[45]       
The defendants offered to settle at 26% liability before trial.  The
Court found Ms. Wong to be 50% at fault.  For his part, Mr. Kimber
made no offer to settle before trial, maintained the defendants were entirely
at fault and was found 50% liable for the collision at trial.  Again, this
factor is neutral.  The result at trial was an equal division of liability. 
While the apportionment of liability was almost double what the defendants had
offered, it was also only one-half of the apportionment sought by the
plaintiff.

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

[46]       
In this action, success was divided.  The plaintiff achieved substantial
success, and a significantly better result at trial than the 26% apportionment
of liability proposed by the defendants in their offer to settle.  The
defendants were also successful on the apportionment of liability.

[47]       
The plaintiff submits that if he is required to bear 50% of his claimed costs
and disbursements of $ 66,482, those expenses would significantly and unjustly
diminish the result he achieved.

[48]       
The defendants say that if the Court assumes an effective bill of costs
of approximately $56,500, 50% of that amount, or $28,000, is only 15% of the
settlement amount of $184,500.  The defendants contend that if the Court
applies the usual rule, a costs order requiring the plaintiff to bear 50% of
his costs and disbursements will not "effectively defeat" his success
in this action.

[49]       
In Gowler v. Ngo, 2011 BCSC 1428, where the plaintiff and the
defendant were each 50% responsible for the accident, the Court found that
where the award was $125,000 and the costs claimed were $104,000, 50% of the
costs and disbursements claimed was "very significant", and awarded
the plaintiff 65% of his costs.  In Sartori v. Gates, 2011 BCSC 419,
where the jury found the plaintiff one-third at fault, the damages award was
$235,000.  The Court commented that a $45,000 difference in costs, representing
less than 25% of the amount of the award, was not a "punishing" costs
order, and applied the usual rule.

[50]       
Here, based on the costs and disbursements claimed by the plaintiff in
his draft bill of costs, the difference is $33,241, which is less than 20% of
the settlement amount.  Even if the plaintiff’s costs and disbursements are
assessed in the full amount claimed, the result achieved would not be
effectively defeated by apportionment under the Negligence Act.

CONCLUSION

[51]       
Weighing all of these factors, I find that the plaintiff has not
demonstrated that an award of costs under s. 3(1) of the Negligence Act
will result in an injustice.  The "usual" rule will apply; the
plaintiff will recover 50% of his costs and reasonable disbursements, to be
assessed.

PEARLMAN
J.