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BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Archive for January, 2013

Medico-Legal Reports from Previous Lawsuit Ordered Disclosed in Subsequent Litigation

January 31st, 2013

In the ever developing landscape of disclosure obligations in personal injury lawsuits, reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, addressing the discoverability of medico-legal reports obtained in previous litigation.

In the recent case (Wright v. Thomas) the Plaintiff was involved in a personal injury lawsuit that went to trial in 2007.  In that lawsuit various expert reports were introduced into evidence.  The Plaintiff was injured in a subsequent collision and advanced another lawsuit.  The Defendant wished to rely on the previous medico-legal reports but the Plaintiff objected arguing these reports were not relevant and production violated the implied undertaking of confidentiality.  In ordering that the reports be produced Master Bouck provided the following reasons:

[16]         Whether the implied undertaking rule even applies in this case might be in doubt. In Cochrane v. Heir, 2011 BCSC 477, the court ruled that a plaintiff must provide records obtained in a previous personal injury action as part of disclosure obligations under Rule 7?1. Furthermore, one might query whether evidence disclosed at a public trial and now part of a public record is subject to the implied undertaking rule. The underlying purpose of the implied undertaking rule is to protect the privacy of an individual who is compelled to disclose certain information in the pre?trial process.

[17]         In the case at bar, I understand that some of the reports were used at trial and thus any breach of privacy has already happened. However, this last point was not argued, so I must still determine whether the documents at issue involving the same plaintiff also concerned the same or similar issues to the case at bar…

[21]         In the present action, the clinicians also make mention of possible conversion disorder.

[22]         The alleged probative value of the reports in the earlier action is to show that the plaintiff has a history of, or perhaps a susceptibility to, these non?organic conditions.

[23]         In my view, in the absence of some medical evidence in support, the court should not make the leap and decide that all of the above?described conditions fall within the same diagnostic category. In fact, the only similar or same diagnosis is the conversion disorder. Presumably the existence of this condition historically forms the factual basis for one of the defences to this action, otherwise the defendant would not be pursuing the application.

[24]         The defendant’s pleadings were not before me. It might have been helpful to have that pleading as an exhibit to an affidavit. One option for the court would be to dismiss the application with liberty to reapply upon providing such evidence. Obviously a further application will result in additional cost to one or both parties. To avoid such cost, I have instead reviewed the electronic record of this pleading, which is a matter of public record. The presumption of the plea of pre?existing condition was confirmed.

[25]         Thus, in my view, the defendant has met the threshold test of relevancy with respect to the following reports: Dr. Rocheleau dated October 24, 2005; Dr. Rocheleau dated December 21, 2005; and Dr. Kemble dated November 28, 2005…

[27]         I now turn to the question of prejudice. First, there is no evidence from the plaintiff that she is prejudiced by the use of this information. The contents of the affidavit of Katheryn MacDonald can be given no weight, as any statements regarding possible prejudice are based on double hearsay. Other parts of the affidavit are akin to argument.

[28]         In any event, the implied undertaking rule is not intended to prevent attacks on the plaintiff’s credibility. Indeed, in many of the cases before me, leave is granted to permit a challenge to a party’s credibility using the evidence given at a previous examination for discovery. Prejudice to the plaintiff has not been established.

[29]         Nevertheless, in my view, the order sought by the defendant with respect to the use of the reports at trial is too broad. Rather, the order will go that the defendant is given leave to list the three reports in her list of documents.


$130,000 Non-Pecuniary Assessment for Bimalleolar Ankle Fracture With Chronic Limitations

January 30th, 2013

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a serious ankle injury leading to permanent partial disability.

In this week’s case (Hubbs v. Escueta) the Plaintiff was injured in a motorcycle accident when he was struck by the Defendant.  Although liability was contested the Court found the Defendant’s evidence was “not credible” and he was found fully at fault for the collision.

The Plaintiff suffered a complex bimalleolar ankle fracture which was treated surgically.

(Image via Wikimedia)

The hardware was eventually removed but the Plaintiff’s symptoms continued.  He was expected to have permanent restrictions with his ankle and was exposed to risk of early degenerative changes leading to further deterioration   The Plaintiff worked as an electrician and his ability to do so was significantly compromised by this injury.  In assessing non-pecuniary damages at $130,000 Madam Justice Ross provided the following reasons:

[135]     This case highlights the importance of the individual circumstances. The injury suffered by Mr. Hubbs is serious. While the consequences for someone of more sedentary occupation and lifestyle might not have been so significant, for Mr. Hubbs the injury has proven to be life changing. He is a relatively young man who now faces a lifetime of limitation and disability. Mr. Hubbs’ livelihood requires strength, agility and balance, all of which have been impaired by the injury. The injury has impaired his ability to earn his living. He has worked through the pain, but at a terrible cost to his family life. He is no longer able to enjoy the active lifestyle he loved. His mood is depressed and he has little energy for anything except the struggle to put in a day at work. His relations with his wife and children have been damaged. It appears that he has reached a plateau in his recovery and faces a future of increased deterioration and vulnerability to injury.

[136]     In my view, the cases cited by plaintiff’s counsel are more representative of the circumstances in the present case. I award $130,000 for non-pecuniary loss.


Social Host Lawsuit Survives Summary Dismissal Application

January 29th, 2013

As previously discussed, the circumstances of when a social host (ie – the host of a private party at a residence) can be held liable for injuries caused when an intoxicated guest leaves and causes injury to others is an open one.  Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, further addressing this area of the law.

In today’s case (Lutter v. Smithson) the plaintiff was injured when a vehicle in which he was a passenger was struck by the defendant Smithson.  Prior to the collision Smithson, who was 18 at the time, attended a “Bring Your Own Booze” party and became “very drunk“.  The party was hosted by the Defendants Mazus to celebrate their daughter’s 19th Birthday   The Mazus brought a summary dismissal application arguing that they cannot be held liable in these circumstances.  Mr. Justice Macaualy dismissed the application finding this “novel question of liability” should be decided via full trial.  In doing so the Court provided the following reasons:

[15]         As a more general proposition, I am satisfied that the novel question of liability arising out of the consumption of alcohol by a minor at a party hosted on a defendant’s property as raised in this case is best addressed after a full trial. That approach ensures the most complete record possible. In reaching that conclusion, I take into account the additional costs to the Mazus associated with the trial process but there is otherwise no prejudice. In Sidhu v. Hiebert, 2011 BCSC 1364, the summary judgment application judge reached a similar conclusion…

[21]         Childs is a very important decision relating to social host liability. In determining the sufficiency of the affidavit material here and whether it is just to decide the issues on summary judgment, a review of the principles that emerge from the case assists.

[22]         In Childs, the defendant homeowners hosted a party, during the course of which they served a small quantity of alcohol to adult guests. For the most part, the event was “BYOB”. The defendants knew that one of the guests, Desormeaux, was known to be a heavy drinker. As Desormeaux walked to his car to leave, one of the hosts inquired if he was okay to drive. Desormeaux responded affirmatively and drove away. The accident ensued.

[23]         Childs was the first time the Supreme Court considered whether social, as opposed to commercial, hosts who invite guests to an event where alcohol is served owe a duty of care to third parties who may be injured by intoxicated guests (para. 8).

[24]         The court did not accept that the existence of a duty on the part of commercial hosts could be extended, by analogy, to the hosts of a private party (para. 23). Accordingly, the court went on to apply the first stage of the Anns test (Anns v. Merton London Borough Council, [1978] A.C. 728), and concluded, for two reasons, that the necessary proximity had not been established (para. 26):

First, the injury to Ms. Childs was not reasonably foreseeable on the facts found by the trial judge. Second, even if foreseeability were established, no duty would arise because the wrong alleged is a failure to act or nonfeasance in circumstances where there was no positive duty to act. [Emphasis added.]

[25]         Of potential significance here, the trial judge in Childs never found that the hosts knew, or ought to have known, that the guest who was about to drive was too drunk to do so. For that reason, foreseeability, and accordingly proximity, were not established. Although there was evidence that Desormeaux had a high blood alcohol rating, evidence that the hosts knew of his intoxication was absent (para. 28).

[26]         At first blush, Mrs. Mazu’s admission that she knew Smithson was drunk before he left the party appears to fill the foreseeability gap that the Supreme Court first identified in Childs. That appears to strengthen the application respondents’ contention that foreseeability may be established here.

[27]         As to the second point made in Childs respecting the lack of a positive duty to act, the hosts and guests were all adults. The court identified the lack of paternal relationship between host and guest, coupled with the autonomy of the guest, as factors that militated against imposing a positive duty to act on the hosts (see paras. 42–45).

[28]         In the present case, the application respondents point out that s. 33(1)(c) of the LCLA forbids a host permitting a minor to consume liquor “in or at a place under his or her control.” At the material time, the uncontradicted evidence is that Smithson was 18 years old and, accordingly, a minor. I agree with the respondents that this may militate in favour of imposing a positive duty. The evidence also reveals that other minors were present at the party, although it may be that most were also close to the age of majority.

[29]         To adopt some of the language in Childs, found at para. 45, these distinctions raise the question whether an adult host is actively implicated in the creation or enhancement of the risk if she permits an underage person on her property to consume alcohol to the point of intoxication, perhaps extreme intoxication. As in Sidhu, that important question is, in my view, better left to be determined upon the fullest record available after a regular trial. Accordingly, it would be unjust to decide the issue on a summary judgment application.

[30]         There is, in my view, a significant risk of injustice in attempting to determine the answers to the essential questions that the Mazus raise in this case on a summary trial. I dismiss the application.


"It is Not for the Tortfeasor" To Dictate Timelines for a Plaintiff's Retirement

January 29th, 2013

Interesting reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing mitigation of damages in a personal injury claim seeking compensation for reduced pension benefits.

In this week’s case (Wangert v. Saur) the Defendant died when his vehicle collided with a train operated by the Plaintiff.  The Plaintiff suffered from Post Traumatic Stress Disorder and missed some time from work.  The Plaintiff retired in 2012 and sought damages for a reduced pension arguing that had he not been psychologically injured by the collision he would have worked more hours thereby having greater pensionable earnings.

The Defendant argued that since, at the time of the Plaintiff’s retirement at age 55, he was able to work full time and had no residual difficulty from the Accident he failed to mitigate his damages by not working past his otherwise planned retirement in order to earn a greater pension.  Mr. Justice Abrioux rejected this argument providing the following reasons:

[34]         In this case, I accept the plaintiff’s evidence that he had always planned to retire at the age of 55. He had spent many years working for CP Rail.

[35]         The defendant did not cite any legal authority supporting his position that a plaintiff could have mitigated losses by working past his or her planned retirement age. I was also unable to find any.

[36]         In my view, planning for retirement is a very important stage in a person’s life. When one has the opportunity to retire at a certain age, even though continuing to work remains available, the decision to retire is not entered into lightly. It is not for the tortfeasor to take the position that the plaintiff‘s failure to change his life plan due to an accident which occurred through no fault of his own, amounts to unreasonable conduct.


"Significant Prejudice" Bars Admission of Late Defence Rebuttal Report

January 28th, 2013

As previously discussed, Rule 11-7(6) allows the BC Supreme Court to admit expert evidence that does not otherwise comply with the Rules of Court.  Reasons for judgement were released last week addressing this discretionary power in cases where prejudiced is caused by the late report.

In last week’s case (Neyman v. Wouterse) the Plaintiff was injured in a 2007 collision.  The Defendant proceeded to trial with only one expert report which was served well outside of the timelines required by the Rules of Court.  The Defendant asked the Court to allow the report into evidence arguing that there would be severe prejudice if the report was excluded as “it is the only medical evidence available to him to tender into evidence“.

Mr. Justice Walker refused to allow the report in finding the Plaintiff would be prejudiced by depriving her adequate time to prepare for cross-examination.  In so finding the Court provided the following reasons:

26]         I am satisfied that plaintiff’s counsel has, through no fault of his own or of his client, not been able to properly consult with his client’s medical experts to determine the answers to those questions. It is also clear to me that standing the trial down for a half day or day or two does not afford the plaintiff and her counsel the opportunity to properly respond to Dr. Bishop’s report, even if it was admitted on a redacted basis.

[27]         In all, I am satisfied, from counsels’ submissions and from the nature of the evidence given by the medical experts to date, that plaintiff’s counsel may well have approached the preparation and prosecution of his client’s case quite differently if he had known that Dr. Bishop’s report was to be admitted…

[32]         As a result of his position concerning terms, which in my respectful view seeks to constrain the outcome of the application to the defendant’s greatest advantage, I conclude that the defendant cannot meet the requirements of Rule 11-7(6)(b).

[33]         Lastly, turning to sub-rule (c), as Savage J. noted in Perry, there must be some “compelling analysis” why the interests of justice require the Court to exercise its discretion to allow the “extraordinary step” of abrogating the requirements of the Rules. None was presented by the defendant in submissions. Moreover, I find that the circumstances of this case, particularly the dilatory conduct of the defendant, do not compel me to exercise my discretion under sub-rule (c) to admit Dr. Bishop’s report into evidence without an adjournment on terms. To otherwise admit Dr. Bishop’s report would not be in the interests of justice.

[34]         As a result, the defendant’s application is dismissed. Dr. Bishop’s report will not be admitted into evidence.


Court Finds ICBC Settlement "Not a Family Asset" in Divorce Proceedings

January 25th, 2013

While there is no ‘one size fits all‘ answer to the question of whether a personal injury settlement is a family asset in divorce proceedings, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, highlighting circumstances where it is not.

In this week’s case (Shen v. Tong) the parties ‘lived in a marriage-like relationship‘ since 2004 and were married in 2008.  In 2004 the Respondent was injured in a collision and she subsequently settled her ICBC claim in 2006.  The funds were invested and still available at the time of the Divorce and the Claimant sought an order declaring this money as a family asset.  Madam Justice Stromberg-Stein refused and provided the following reasons:

[40]         Ms. Tong’s position is her ICBC settlement is not a family asset.  It was largely for general damages and of the $13,564 for past wage, about half this time was before their relationship started.  Ms. Tong invested the settlement proceeds and never used them for a family purpose.  She maintained she wanted to save the award for her recovery but she did not have to use it for that purpose as she had Mr. Shen’s benefits.  She sent the invested proceeds, now $60,000, to her parents in China in January 2012.

[41]         The ICBC settlement is not a family asset.  Ms. Tong does not have to account for what amounts to a negligible wage loss claim.


Fast Track Costs Apply Despite 4 Day Trial

January 24th, 2013

As previously discussed, Rule 15 is applicable to BC Supreme Court injury trials with a quantum of less than $100,000 or to trials that can be completed in three days or less.   This week reasons for judgement were published by the BC Supreme Court, Vernon Registry, addressing what costs flow following a Rule 15 trial which exceeds three days.

In this week’s case (Travelbea v. Henrie) the Plaintiff was injured in a collision.  Following a four day trial which was prosecuted under Rule 15 damages of just over $68,000 and costs were awarded.  The Plaintiff sought costs under the Tarriff and the Defendant argued that the capped costs of Rule 15 should apply.  Mr. Justice Barrow agreed with the Defendant and noted that there is nothing sufficient in a trial exceeding three days to depart from Rule 15 costs.  The court provided the following reasons:

6]             In general, the case was conducted in accordance with the parameters set by Rule 15-1. The plaintiff did not conduct an examination for discovery of the defendant. The defendant’s examination for discovery of the plaintiff was completed within two hours. There were no interlocutory applications by either party. The only substantive exception to the limitations imposed by the fast-track regime is that the trial spanned four days…

[10]         The only aspect of this case to which the plaintiff points by way of special circumstance is that the trial was set for four days and, in fact, took almost four days to be heard. I am not persuaded that the circumstance is sufficient to justify otherwise ordering. First, when the notice of trial was filed indicating that four days would be necessary, the plaintiff was content that the matter should remain in the fast-track regime. That is apparent by virtue of the endorsement on the notice and the fact that no application to the court or request to the defendant was made seeking to remove the case from the regime. Second, although the trial took more than three days, it took only marginally more, less than half a day.

[11]         I acknowledge the plaintiff’s submission that the case may have taken much longer had counsel not dealt with the matter so efficiently and co-operatively. To accede to that submission would be, in effect, to sanction a party for doing that which the Rules are intended to promote, namely, to conduct trials in an expedient and efficient way.

[12]         In the result, I am satisfied that the lump sum costs provided for in Rule 15 ought to be imposed in this case, and I order that the plaintiff is entitled to costs under Rule 15-1(15)(c) in the amount of $11,000.


$115,000 nonpecuniary assessment for fractured femur and chronic pain disorder

January 23rd, 2013

Reasons for judgement released recently by the BC Supreme Court, Vancouver Registry, assessing damages for various injuries sustained in a motorcycle accident.

In the recent case (Taylor v. Depew) the plaintiff was riding a motorbike which was involved in a head-on collision with a dune buggy on a narrow road near Campbell River BC.  Fault was disputed with the court ultimately finding that both motorists were to blame.  Liability was split with the plaintiff shouldering 30% of the fault and the defendant 70%.

The plaintiff suffered various injuries the most serious of which was a fractured femur.  This resulted in ligamentous laxity in his knee.   In addition to this the plaintiff suffered disc herniation’s in his low back and ultimately went on to develop chronic pain syndrome.

In assessing nonpecuniary damages at hundred and $115,000 Madam Justice Fenlon provided the following reasons for judgement:

57]         After the accident, Mr. Taylor’s life changed dramatically. In the days immediately following the accident, he underwent surgery to install a rod and pins to stabilize his femur; he remained in hospital for one week. Two further surgeries on his left leg were required: in October 2001 to remove the proximal locking screw; and in March 2003 to remove the remaining hardware in his leg. The recovery from all three surgeries was long and painful, lasting a number of weeks.

[58]          Mr. Taylor required assistance with day-to-day tasks such as cooking, cleaning and bathing during these recovery periods. After the first surgery he had the help of a homecare nurse, and then his friends Sarah Zimmer and Jamie Gonzalez assisted him. The two women helped him again after the second and third surgeries. The surgeries have left Mr. Taylor with marked permanent scarring on his left hip and knee.

[59]         Before the accident, Mr. Taylor had enrolled in an environmental engineering degree program to commence in September 2001. He tried to carry on with his plan to return to school but the pain killers he was taking made it difficult for him to concentrate and his general physical condition and inability to drive made it hard to attend classes. Depression set in and ultimately Mr. Taylor abandoned the environmental engineering program.

[60]         Mr. Taylor has had difficulty dealing with the changes to his life caused by the accident. For a few months he turned to street drugs and alcohol. He became depressed and uses anti-depressants like Effexor to help relieve the symptoms of depression.

[61]         Although Mr. Taylor has seen some improvement in the state of his injuries over time, he still experiences pain on a daily basis. When he sits, stands, or walks for long periods he suffers from pain and numbness in his left leg…

[72]         Awards of damages in other cases provide a guideline only. I must apply the factors listed in Stapley to Mr. Taylor’s particular case. I conclude that an award of $115,000 is an appropriate sum for non-pecuniary damages…


Costs Ordered To Be Paid To Insured Defendant; Not Insurer

January 22nd, 2013

When an ICBC insured Defendant is awarded costs following successfully defeating a BC Supreme Court lawsuit, do the costs get paid to the litigant or to the insurer?  To date there are contradictory authorities addressing this (you can click here to read a case awarding costs to the party and here for a case awarding them to ICBC).

Adding to the uncertainty, reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, indicating that the personal defendant gets the benefit of the costs payment.

In this week’s case (Nadeau v. Okanagan Urban Youth & Cultural Association) the Plaintiff was injured when struck by a vehicle.  He sued a personal defendant arguing he was the driver and also ICBC arguing that they were liable in the event that the personal defendant was not the driver.  The Claim against the personal driver was ultimately dismissed and the claim against ICBC succeeded.

The Defendant was awarded costs, however, Mr. Justice Powers found that a ICBC should be responsible for payment of the costs to the  personal Defendants.  In doing so the Court provided the following reasons:

[135]     . I order that the plaintiff recover 85 percent of his costs from the defendant, ICBC, at Scale B. I also order that the plaintiff recover the costs he is required to pay to Mr. Usseni and James Mugambi and James Kibigi from the defendant, ICBC. I am satisfied that this is one of those cases which fall within Rule 14-1(8) of the Civil Rules, where the plaintiff should recover the costs it pays to those defendants as a disbursement in its bill of costs against the defendant, ICBC.

[136]     The central issue in this proceeding on liability was which vehicle struck the plaintiff and who was operating that vehicle. If it was not the vehicle owned by Ms. Mutanda and driven by Mr. Usseni, then it would be a vehicle operated by an unidentified driver. The only question with regard to liability of the defendant, ICBC, for the unidentified driver, was whether the accident occurred on a highway so that s. 24 of the Act applied. Of course, the extent of the negligence of the operator and of Mr. Nadeau were also in issue, but those were in issue in any event.

[137]     In this case, not only was it reasonable for the plaintiff to bring its action against Mr. Usseni and Ms. Mutanda, James Kibigi and James Mugambi, as well as ICBC pursuant to s. 24 of the Act, it was the only course available to the plaintiff. There were real and legitimate issues of fact as well as issues of law that could not be resolved without a proper trial. The cause of action against each defendant was the same. The only issue was which defendant was liable depending on findings of fact.

[138]     In my opinion, it would be unfair to require the plaintiff to pay the costs of Mr. Usseni, Ms. Mutanda, James Kibigi and James Mugambi, without the ability to recover those costs from the unknown driver, or in this case, ICBC, pursuant to their liability under s. 24 of the Act.


Sensible Compromise Suggested in Face of Late Medical Developments

January 21st, 2013

When medical developments unfold deep in the litigation process it is not uncommon for adjournment applications to be granted.  Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, addressing such a situation urging parties to make reasonable compromises to accommodate these developments.

In the recent case (Dhillon v. Bowering) the Plaintiff was injured in two collisions that the Defendants admitted fault for.  In the course of the lawsuit the Plaintiff was assessed by an orthopaedic surgeon who felt some of the Plaintiff’s symptoms may be due to a possible labral tear.  An MRI was suggested.  The Plaintiff obtained an MRI which did indeed show bilateral labral tears.   The Plaintiff served an updated medical report addressing this.  This report, however, was authored and served outside the timelines required by the Rules of Court due to the timing of the MRI.

The Defendants requested a defence medical exam to address this issue.  The Plaintiff consented to this late examination provided the Defendants did not object to the late report the Plaintiff served.  The Defendant did not agree to these terms and instead brought an adjournment application.  Master Taylor refused to adjourn the trial noting the Plaintiff bore some risk in proceeding as the Plaintiff’s late report may not be admitted.  In suggesting compromise in such cases Master Taylor provided the following reasons:

[12]         So on one hand we do not have Dr. Shuckett’s report in evidence, and now we have defendants asking for an adjournment so that they can do what they need to do to buttress their case because of the report of Dr. Shuckett, which is not in evidence.

[13]         In my view, this problem could have been easily resolved by both parties agreeing to the late service of Dr. Shuckett’s report as well as the DME report from Dr. O’Brien and the matter would have proceeded.  Now we are faced with an adjournment application of a trial that is 11 days away, the first accident which occurred more than five years ago…

[18]         Well, with the greatest of respect to counsel, I do not know if prejudice would be an operating theme here in this application.  I think what is more to the point, and I pointed that out to counsel at the early stage of this application, is that, first of all, there is a hurdle that plaintiffs have to get over before a defendant should be even concerned about this fact.  The fact that they have not had a DME with respect to a labral tear in the left hip is not so much their concern but rather the causal connection.  I have not seen anything in any of the reports that would be suggestive in any way whatsoever that there is anything but the accident as a causal connection.  Now, if that is the only reason, ultimately, that the defendants are relying upon for an application for adjournment in this matter, then I think the defendants do not succeed in their application.

[19]         Accordingly, I dismiss the application for adjournment, and I will award costs to the plaintiff in any event of the cause, not payable forthwith.