Disbursements and "Purchasing the Cadillac When the Buick Will Do"

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, upholding a finding that expert reports from a treating physiotherapist were an unnecessary luxury in a personal injury prosecution.
In today’s case (Salsman v. Planes) a variety of disbursements were at issue following the settlement of a personal injury claim.  One of the challenged disbursements dealt with expert reports from physiotherapists.  In disallowing these disbursements the Court noted that “these reports are an example of the plaintiff purchasing the Cadillac when the so-called Buick would serve the required purpose.“.  In upholding this decision on appeal Mr. Justice MacKenzie provided the following reasons:

[17]         The plaintiff obtained three physiotherapists’ reports. The first was Ms. Cuttiford’s report of September 23, 2010, approximately five weeks after the motor vehicle accident.

[18]         The second report was a neuro-physiotherapy report prepared on September 25, 2010, by Ms. Koshman, a vestibular physiotherapist. A third report was prepared by Ms. Koshman in December 2012, approximately 18 months after the plaintiff returned to work.

[19]         After noting the position of both the plaintiff and defendant, the Registrar observed that plaintiff’s counsel acknowledged the reports of Ms. Koshman could not be relied on to provide an opinion on causation, prognosis or treatment, thereby necessitating a report from another expert, a Dr. Longridge. It is to be noted that the defendant also contested the necessity of Dr. Longridge’s report. The Registrar, however, agreed with the plaintiff that this report was necessary and allowed this disbursement in its entirety. On the other hand, the Registrar concluded the reports of Ms. Koshman were not necessary. In addition, the Registrar noted the defendant’s argument that as the plaintiff had returned to work and counsel was aware the plaintiff’s symptoms had largely resolved by the time the second report was requested, this report from Ms. Koshman was not necessary or proper. The Registrar agreed with the defendant on this point and disallowed the cost of Ms. Koshman’s second report.

[20]         In addition, as far as all three reports are concerned, the Registrar stated at para. 39 of her decision that:

[39]      However, in my respectful view, these reports are an example of the plaintiff purchasing the Cadillac when the so-called Buick would serve the required purpose. The Buick in this case is the therapists’ clinical records. It is those documents which record the contemporaneous symptoms during assessment and provide records of treatment and outcome. Given that the plaintiff was being followed by a family doctor, a rehabilitation consultant and eventually various specialists, I see no need or propriety in commissioning reports from the physiotherapists. Accordingly, these disbursements are disallowed…

[29]         In my view, the Registrar adequately addressed these issues and provided sufficient reasons when exercising her discretion to disallow these very early physiotherapy reports. I am unable to say she was clearly wrong or erred in principle in reaching this decision.

[30]         Given the relevant circumstances, the second Koshman report of December 29, 2012 is even more problematic for the plaintiff. In this report, Ms. Koshman states that she saw the plaintiff for 14 treatment sessions between September of 2010 and March 24, 2011, before he returned to work in April of 2011. For the purposes of preparing the December of 2012 report, she reassessed the plaintiff on November 30, 2012, some 20 months after the plaintiff’s last treatment. Trial counsel deposed as to why these reports were ordered. However, it is not sufficient for the plaintiff to merely demonstrate that these reports and expenses were “very useful in this case”. As such, I do not find that the Registrar was merely second-guessing competent counsel. Given all of her reasons, I find the Registrar turned her mind to all the relevant factors and principles in reaching her decision.

[31]         As a result, I am not satisfied the plaintiff has established that the Registrar was clearly wrong or erred in principle in concluding that Ms. Koshman’s second report was unnecessary and extravagant. This aspect of the plaintiff’s appeal is also dismissed.

[21]         As a result, the disbursements for these three reports were disallowed.