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Assumed Future Fact Scenarios Are OK In Economic Expert Reports

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Reasons for judgement were released recently by the BC Supreme Court, Victoria Registry, addressing the appropriateness of assumed future fact scenarios in an economists report.  In short the Court held that such assumptions could be laid out in the body of a report.
In the recent case (Hill v. Murray) Mr. Justice Macaulay provided the following comments on this topic:
[7] In Sacilloto v. Crossman (1990), 49 B.C.L.R. (2d) 375 (S.C.), the defence objected to an economist’s report that set out various possible scenarios for the expected earnings of the plaintiff, based on the assumption that he had not been injured in the accident, along with further scenarios for possible earnings after the accident.
[8] The court pointed out that many of the assumptions underpinning the report were at issue in the trial and, as a result, it would be impossible for counsel or the economist to rely on one assumption as to facts. The court considered the use of several scenarios to be in harmony with the fact that there were a number of live issues at trial. On admitting the report, the court stated:
(12) I am left with the impression that the author of the report has endeavoured … to tie the statistical data to the various possible scenarios that I may find or may not find applicable to the plaintiff. In doing so, he has endeavoured to mould the report to the likely evidence scenarios before the Court. That opinion evidence to me is useful evidence. It provides me with materials which, from my general experience both before and after coming to the Bench, I would not otherwise have.
(13) The case here is not a simple looking ahead for someone who has worked for many years and has established his working pattern in life. …
(14) Here, I am dealing with a young man who is embarking upon a working career, who on the evidence … was in a state of flux as to what he would do in the future … The type of evidence that has been put before me is such that I could not from my own experience pluck it out of my mind and arrive at reasonable estimates as to what might lie ahead depending on the findings of fact that I make.
Although this case suggests that admissibility may depend on the complexity of the calculations involved and the uncertainty of the future options for the plaintiff, the use of the scenarios does not in itself render the material inadmissible.
[9] Finally, the Court of Appeal implicitly improved the admission and use of such expert opinion material in Jurczak v. Mauro, 2013 BCCA 507. In that case, the economist provided an expert opinion on loss of earning capacity based on two sets of assumptions arising out of the plaintiff’s pre-accident work history and proffered scenarios in each case.
[10] Although the Court of Appeal overruled the trial judge’s approach to determining future loss of earning capacity, the court commented, “if there are mathematical aids that may be of some assistance, the court should start its analysis by considering them.” A failure to do so may result in a wholly erroneous estimate of the damages (both at paragraph 37).
[11] In this regard, I am satisfied that the sections of the reports and tables to which the defendant objects in the present case are admissible.
To my knowledge these reasons for judgement have not yet been publicly published but, as always, I am happy to share a copy with anyone who contacts me and requests them.
 

Expert Witness Judicially Drubbed for Showing "a Lack of Willingness to Be Frank, Open and Honest With The Court"

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In perhaps one of the strongest judicial drubbings in recent years by the BC Supreme Court, an expert witness was criticized for abandoning his obligation to assist the court in favour of advocacy.
In today’s case (Mattice v. Kirby) the Plaintiff was injured following a high impact collision.  The Court heard competing medical evidence as to the severity of the Plaintiff’s collision related injuries.  In rejecting the defense evidence which minimized these Mr. Justice Jenkins had the following critical comments:
 [1]             This case involves a significant claim for damages for personal injuries following a high impact collision on August 21, 2009. Of particular interest in this case is the dramatically different approaches taken by the medical experts for both sides. In spite of statements by these experts that they are aware of their obligations as expert witnesses under Rule 11-2(1) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, and their duty to assist the Court and not be an advocate for any party, in some cases it is clear that the temptation to become an advocate takes priority over the obligation to assist the Court…
[75]         Dr. Keith Christian, an orthopaedic surgeon, provided an expert report for the defence and was also cross-examined at trial. Dr. Christian assessed Mr. Mattice on October 19, 2012 and issued a report the same day. Dr. Christian completed his interview and physical examination of Mr. Mattice in a total of twenty minutes, which included 16 minutes for the interview and four minutes for the physical examination. Dr. Christian did not disagree that his assessment of Mr. Mattice was very brief.
[76]         During cross-examination, Dr. Christian was very argumentative and often arrogant. He stated that when asked previously by defence counsel whether he took notes of his meeting with Mr. Mattice, he advised that he did not take notes. At trial Dr. Christian admitted to having taken “scribbles”, which he said were illegible and which he destroyed after dictating his report on the day of the assessment. He said he had denied having taken notes as he had instead made “scribbles” and that no one had asked him if he had taken any “scribbles”. Since Dr. Christian admitted on cross-examination to having used his “scribbles” to dictate his report, there is little doubt in my mind that his “scribbles” were what any doctor would consider “notes” and that Dr. Christian was well aware that his “scribbles” constituted what anyone else would consider to be “notes”. His answers in this inquiry were most evasive and clearly showed a lack of willingness to be frank, open and honest with the Court.
[77]         Dr. Christian’s interview and physical examination of Mr. Mattice were without question incomplete. On cross-examination, Dr. Christian admitted that he had not asked Mr. Mattice questions regarding, among many other things: the severity of the accidents of 2008 and 2009; any symptoms in his hands such as pain and “pins and needles”; whether symptoms, if there were any, were improving; bruising on Mr. Mattice’s elbow; the nature of his employment; the extent of the pain in his shoulder; and sleep problems. Dr. Christian also did not inquire about aspects of the accident that were relevant to the injuries claimed, such as Mr. Mattice’s body position in the 2009 accident and how he was impacted in the accident. In written submissions, counsel for Mr. Mattice listed 18 areas of legitimate inquiry that Dr. Christian could have pursued to provide a more informed and unbiased opinion; in my view, there were areas in addition to these 18 which Dr. Christian could have explored, but elected not to do so….
[82]         In cross-examination Dr. Christian stated that there was no reason at the time for him to be having shoulder pain, that any fatigue being experienced by Mr. Mattice was “absolutely irrelevant”, that there was no reason for Mr. Mattice not to improve, and that there was no reason for Mr. Mattice to have a problem with his shoulder. He stated that, generally, in his opinion, Mr. Mattice should have been over any injuries from the 2009 accident long before the visit to Dr. Christian.
[83]         In conclusion on Dr. Christian’s evidence and opinions, I have no hesitation in finding that his research was incomplete, that he was predisposed to a finding that Mr. Mattice’s injuries were either exaggerated or did not exist, and that by limiting his opinions to musculoskeletal injuries, he was not qualified to opine on the injuries which Mr. Mattice claimed to have suffered in the 2009 accident. As a result, I find the opinions and evidence of Dr. Christian to be of little or no probative value and I am left with the medical-legal opinions of the plaintiff’s expert and all other evidence to make a determination regarding Mr. Mattice’s injuries.
 

Court Finds Dr. Koch "To Be More of An Advocate For ICBC"

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Adding to this site’s archived posts highlighting judicially rejected expert witness evidence reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, criticizing the evidence of a defense medical opinion.
In last week’s case (Kristiansen v. Grewal) the Plaintiff was injured in a 2009 collision.  Fault was admitted.    The Plaintiff alleged a host of consequences from the crash.  Although the Court found that some of the Plaintiff’s difficulties originated from issues other than the collision the crash was causative of some of her difficulties.
In the course of the trial the Court heard from a variety of physicians.  Once expert, Dr. Koch, hired by ICBC, was found to be an advocate and his evidence was not accepted for this reason.  In rejecting his evidence Mr. Justice Romilly provided the following brief comments:
 [14]         Among the experts, I found that Dr. Koch’s report and his testimony in court seemed to lack objectivity. In fact, he seemed to be more of an advocate for the defendants and ICBC. I have difficulty accepting any of his evidence.
 

Dislodged Breast Implant and Voice Injury Result in $120,000 Non-Pecuniary Assessment

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Reasons for judgment were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for breast implant disruption and a voice injury following a collision.
In last week’s case (Giczi v. Kandola) the Plaintiff was involved in a 2008 collision.  The Defendant admitted fault.  The collision resulted in chronic soft tissue injuries, a dislodged breast implant requiring surgical correction and muscle spasms leading to voice disruption.  In assessing non-pecuniary damages at $120,000 Mr. Justice Sigurdson provided the following reasons:
[120]     In the instant case, the subject accident caused the plaintiff injuries, including: soft tissue injuries to her neck, jaw, and upper back which caused her chronic pain, functional thoracic outlet syndrome, and damage to her breast implant necessitating surgery months later.  The plaintiff’s injuries have resulted in symptoms that are significantly worse than her pre-accident condition and have affected her ability to cope and function.
[121]     I find the plaintiff suffers from a chronic pain condition which was caused by the subject accident.  Not only is the condition painful in the neck, arm and jaw, but the accident dislodged a breast implant requiring further surgery and a painful period of recovery. The chronic pain condition has also had a negative impact on the plaintiff’s relationship with her partner and the intimacy that the couple enjoyed. 
[122]     In addition, the accident has also caused difficulty in the plaintiff’s singing from muscles spasms as a result of her injury.   I find the accident’s effect on the plaintiff’s ability to sing has been profound, given the importance of singing to the plaintiff throughout her life.  The expert evidence of Ms. Davies and Dr. Morrison convinces me that her voice is impaired.  I think that this is a significant factor apart from its effect on her income earning capacity.
[123]     In all the circumstances, I find that the appropriate award of general damages is $120,000. 
 

$95,000 Non-Pecuniary Assessment for Meniscal and Labral Tear

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Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic knee and shoulder injury.
In today’s case (Hart v. Hansma) the Plaintiff was involved in two collisions.  The Defendants admitted fault for both.  The Plaintiff suffered a variety of injuries including a torn meniscus, a labral tear and a variety of soft tissue injuries.  These continued to post problems at the time of trial with a poor prognosis.
In assessing non-pecuniary damages at $95,000 Mr. Justice Verhoeven provided the following reasons:
[54]         I find that the most significant injuries suffered by the plaintiff in the accidents are as follows:
1.     soft tissue injuries to his neck, particularly the right side, resulting in chronic neck pain;

  1. chronic headaches, associated with the neck pain;

3.     right shoulder injury, including a labral tear and tendonitis with a partial rotator cuff tear; and
4.     left knee injury, including a meniscus tear.
The foregoing injuries continue to cause significant ongoing pain and disability currently.
[55]         I find that the plaintiff also suffered from the following, less serious injuries sustained in the accidents:
1.     right upper limp numbness and pain;
2.     low back injury, and associated pain (that is not presently bothering him) in the right hip and buttock area;
3.     right knee pain (although it is now substantially resolved); and
4.     left hip pain (although it is now substantially resolved)….
[65]         The prognosis for full recovery is negative.  It is unlikely that his neck injury will ever fully recover.  There is a risk that his neck condition will deteriorate to the point where cervical discectomy surgery will be required.  The headaches he suffers from are related to his neck injury.  The plaintiff finds that treatment such as acupuncture, physiotherapy and the prolotherapy provide short term relief for his neck pain and headaches.  He takes a variety of medications in order to allow him to cope.  The planned knee surgery may provide some benefit for his left knee pain, but may have long term negative consequences, such as the risk of osteoarthritis. His shoulder condition is also chronic.  The plaintiff has the choice of enduring the pain and limitation of function in his shoulder, or undergoing surgery which may offer some benefit…
]         Taking into account the factors in Gillam as they apply to Mr. Hart’s circumstances, and the above awards in Prince-Wright, Hanson, Steward, and the cases cited by the defendants, adjusting for inflation, I find that an award of $95,000 is appropriate in this case.
 

Saskatchewan No Fault Scheme Catches All Out of Province Motorists

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Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, confirming that Saskatchewan’s restrictive ‘no-fault’ auto insurance scheme strips the right of out of Province visitors from seeking tort compensation when injured through the wrongful driving of another in Saskatchewan.
In this week’s case (Ngo v. Luong) the parties were BC residents driving in Saskatchewan.  The Defendant lost control of the vehicle flipping over and causing injury to the passenger.  The Plaintiff started a lawsuit in BC Supreme Court hoping to get around Saskatchewan’s no-fault system.  Mr. Justice Ehrcke found that Saskatchewan’s laws applied and stripped the Plaintiff’s right to seek damages in tort.  In dismissing the claim the Court provided the following reasons:
[1]             Are British Columbia residents who are involved in a motor vehicle accident in Saskatchewan able to sue for damages in tort in British Columbia, or are they bound by Saskatchewan’s no-fault insurance scheme?…
[27]         The substantive rights of a person who is injured in a motor vehicle accident in Saskatchewan after 2002 and who did not make a tort election prior to the accident are those rights set out in Part VIII. That is true for anyone who did not make a prior tort election, regardless of whether that person is a Saskatchewan resident or not. The only difference is that the out-of-province claimant never had the possibility of making such an election. But once the accident has occurred and the claimant, whether from Saskatchewan or not, has not previously made a tort election, the claimant’s rights are those defined by Part VIII of the AAIA. Thus, the statute does not, as submitted by the plaintiff, set out a procedural election by which a claimant who has been injured in an accident can then select the means by which he or she enforces his or her rights. The rights are already defined by the statute at the moment the accident has occurred. Since the AAIA defines what the claimant’s rights are and not the means of their enforcement, the AAIA is substantive, not procedural law.
[28]         This categorization of the AAIA has the consequence that a British Columbia plaintiff who is injured in a Saskatchewan motor vehicle accident is in no better position bringing his or her suit in British Columbia than in Saskatchewan. The fact that this categorization eliminates a motive for forum shopping is an additional indicator that the categorization of the law as substantive is the correct categorization…
[30]         As I have found the AAIA to be substantive, rather than procedural law, and as the AAIA is therefore applicable to the plaintiff’s claim regardless of the fact that it is brought in a British Columbia court, the plaintiff’s request for a declaration that this action is not barred by the provisions of the AAIA is dismissed.
 

Accelerated Depreciation Claim Succeeds From Crash Causing $18,000 in Vehicle Damage

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Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff damages for accelerated vehicle depreciation following a significant collision.
In this week’s case (Pan v. Shihundu) the Plaintiff was involved in two collisions, the first causing significant vehicle damage resulting in over $18,000 of repair costs.  The Plaintiff was injured and sued for damages.  Among these was a claim for ‘accelerated vehicle depreciation’ arguing that the vehicle’s market value was deflated due to the Defendant’s fault.  ICBC opposed this claim however the Court sided with the Plaintiff.  In awarding damages for this loss Mr. Justice Punnett provided the following reasons:
160]     The plaintiff purchased the 2004 BMW M3 for $30,000 US in March 2008. As noted above, the vehicle required $18,421 in repairs following the First Accident. After that accident the plaintiff attempted to sell the BMW. He listed it on Craigslist for three months at an asking price of $27,000. It was his evidence that he had a few inquiries but no offers after advising prospective buyers of the damage caused by the First Accident. He made similar attempts to sell it in 2011 but received no response. As a result, he still owns and drives the vehicle.
[161]     The plaintiff provided an expert report from Carey Scarrow, who was qualified as an expert in the field of automotive appraisals and automotive collision repairs. He opined that as a result of the 2009 accident the vehicle sustained an accelerated depreciation of $4,000 due to the stigma associated with the BMW having been in the accident.
[162]     In examining the vehicle Mr. Scarrow noted uneven body panel alignment in the front of the vehicle and other minor deficiencies including flaws in the refinished body panels with inconsistent coating thickness. He commented that the overall repair quality was of acceptable industry standards for the calibre of car but not representative of its previous pre-accident factory standard.
[163]     Mr. Scarrow noted that it was mandatory for the seller to declare any damage over $2,000 to a prospective purchaser. He stated that the repaired areas will deteriorate at varying rates, making the repairs more evident as the vehicle ages.
[164]     He then provided his opinion that the collision repairs resulted in a value of $15,000, an accelerated depreciation of $4,000 when compared with an estimated value of $19,000 for a BMW of that make, age, and mileage but without the accident damage. In his report Mr. Scarrow indicated that he based this opinion on his inspection of the vehicle itself, references to the Sanford Gold Book, July 2013 edition (a used car valuation guide), as well as what he referred to as “local market comparable research.” In cross-examination he expanded somewhat on this methodology, noting that he relies on his years of experience in used car valuation and sales to determine the valuation numbers. In this case he said that he also posted the car for sale for a period of three to four days and gauged the response from potential buyers. He noted that potential buyers for vehicles of this type are particularly “fussy” about the details of previous damage and repairs.
[165]     The plaintiff relies on Signorello v. Khan, 2010 BCSC 1448, and Cummings v. 565204 B.C. LTD., 2009 BCSC 1009. Signorello stands for the proposition that a vehicle need not be sold in order to demonstrate an accelerated depreciation loss (para. 29); see also Cummings, at para. 73.
[166]     The defendants acknowledge that claims for accelerated depreciation are good in law. However, they submit there is a heavy burden on a plaintiff to adduce sufficient evidence to prove that accelerated depreciation has actually taken place. They rely on Miles v. Mendoza, 1994 CanLII 419 (B.C.S.C.), and Burrard Import Ltd. v. Budget Rent-A-Car of B.C. Ltd, 2001 BCPC 75. In Miles, the court noted that “difficulties of proof” arise where the car is not sold after the accident, as the depreciating effect of the accident declines over time. The court also said that expert evidence of that only spoke to the general “stigma” attaching to damaged vehicles was not sufficiently persuasive proof to award damages for accelerated depreciation: “it cannot be “assumed”, by virtue of the occurrence of an accident requiring extensive repairs, that a properly repaired vehicle has suffered accelerated depreciation” (para. 40).
[167]     Burrard followed Miles in finding that the evidence did not meet the necessary standard given the claimant’s expert’s opinion amounted to no more than a simple proposition and as a result was not the type of persuasive evidence contemplated by the jurisprudence.
[168]     The defendants submit that the plaintiff must prove that the accelerated depreciation actually occurred by adducing evidence that goes over and above the simple proposition that a car which has been in an accident, even though properly repaired, carries a stigma. They say that in this case the plaintiff’s evidence does not go beyond asserting the existence of such a stigma.
[169]     I cannot accept this submission, for two reasons. First, in my view, the evidentiary standard as described in Miles has not been applied quite so strictly in recent decisions. In Cummings, for example, Madam Justice Gerow awarded $7,600 in damages for accelerated depreciation. There the evidence consisted of an automobile valuation expert’s opinion that the plaintiff’s vehicle had suffered an accelerated depreciation of 20% following the accident. There is no comment in the decision as to the factual basis for this opinion and no suggestion that it went beyond the expert’s experience of the “stigma” in the marketplace. The owner had also attempted to trade the vehicle in but was informed by the dealership that they did not accept trade-ins on vehicles with more than $5,000 in damage.
[170]     In Signorello the car was an extremely rare exotic high-performance luxury sports car, manufactured by Mercedes-Benz. The valuation expert set a value based on conversations he had with various Mercedes-Benz dealers in the province. The court identified some concerns with this evidence, noting that the defendant had argued that the expert’s opinion was based on hearsay and opinion evidence itself. Justice Grauer then said at para. 25:
[25]      … the starting point for any vehicle appraisal is the Canadian Black Book, a guide to the wholesale value of used vehicles in Canada relied upon by dealers across the country. This car is so rare, however, that it does not appear in theBlack Book. Of course the figures in that book could also be described as opinion evidence … In the particular circumstances of the case, it is my conclusion that it was not an inappropriate way for Mr. Cogbill to approach the problem, although it would have been preferable had he included the specifics of his conversations. As it was, he did indicate the dealers whom he consulted, …
[171]     From this I take that the expert may rely on the Black Book or similar valuation guides in coming to an opinion as to the value of the vehicle. It also suggests that the “difficulties of proof” that may arise if the car is not sold can be overcome by an expert’s opinion.
[172]     Second, even if one accepts that the standard from Miles still applies, I am of the view that the evidence tendered here does go beyond a “bare” opinion that the car has suffered depreciation due to a “stigma.” Mr. Scarrow based his valuation on a long history of appraising cars, including BMWs. He also relied on the Gold Book, a valuation guide, and market research that he described in cross-examination. The plaintiff also provided evidence that he had attempted to sell the vehicle at a reduced price following the accident and received no offers.
[173]     I conclude that the plaintiff’s evidence is sufficient to establish accelerated depreciation in value for the BMW. I accept Mr. Scarrow’s figures and award damages of $4,000.
 

Your Son's Piano Practice it Too Loud!

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing a dispute between neighbors.
In today’s case (Wolodko v. Zhang) the parties lived in adjoining strata units.  The Plaintiffs sued the Defendants seeking an injunction arguing the Defendant’s son’s piano playing was a nuisance.
In dismissing the lawsuit and ordering that the Plaintiffs pay the Defendants costs Mr. Justice Masuhara provided the following reasons:
[36]         The plaintiffs have noted numerous instances when they say that the piano playing has interfered with the enjoyment of their unit.  Mr. Zhang does not contest these occurrences.  There is no question that piano playing can constitute a nuisance.  There also appears to be sensitivity to musical instrument playing within this specific complex as evidenced by the bylaw and I recognize that the subject location is a residential high rise strata.  I also note that at one point the Council found that the piano playing had contravened the bylaws.  However, these facts in concert with the plaintiffs’ numerous complaints are not sufficient to establish nuisance.  The test, as stated above, is an objective one relative to the locality.  In my view the evidence is not sufficient to find that a reasonable person would conclude that the described incidents of piano playing constitute a nuisance. 
[37]         In the circumstances here where:
(a)            there are only the complaints of Mr. and Mrs. Wolodko in respect to the piano noise;
(b)            there is an absence of complaints regarding the Zhang unit from others in the complex, which can be contrasted with another piano-noise complaint problem in the complex arising from unit #904 in 2009, where there were several complaints of noise throughout the complex and from people residing on different floors (7th to 10th) and which complaints led to fines being imposed;
(c)            there are no recordings of the complained of piano playing;
(d)            there is the absence of any objective measures or readings of the piano noise; and
(e)            the plaintiffs refused to permit members of the Council to come to their unit to listen for themselves to determine if there had been a contravention of the noise bylaws. 
the case of nuisance, objectively, cannot be said to have been made out.  A further difficulty here for the plaintiffs is the fact that they consented to the dismissal of their action against the strata, which related to alleged infractions of the noise bylaws. 
[38]         The plaintiffs’ action is dismissed.  The defendant is awarded costs on Scale B.

Failing to Wear Seatbelt Results in Increased Injuries and Decreased Damages

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Adding to this site’s archived cases addressing damages when a Plaintiff fails to wear a seatbelt, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, reducing a Plaintiff’s damages by 25% due to not wearing a seatbelt.
In this week’s case (Mosimann v. Guliker) the Plaintiff was involved in three collisions.  She was not at fault for any of them.  She suffered chronic injuries as a result of these crashes.  In one of the collisions she was not wearing a seat belt and her face hit the dashboard.  Although the Plaintiff hired an expert who testified that this did not contribute to her injuries Mr. Justice McEwan rejected this evidence and reduced the Plaintiff’s damages by 25%.  In reaching this conclusion the Court provided the following reasons:
[28]         Although Dr. Whetter was somehow under the impression that the plaintiff was wearing a seatbelt, it is clear that that was not the case. According to Craig Lukar, a professional engineer who gave an opinion to the court, however, the plaintiff would have suffered her facial injuries in any event, that is, even she had been wearing seatbelt.
[29]         Mr. Lukar’s analysis proceeded by using an exemplar vehicle (the one involved In the accident was no longer available) and placing the plaintiff in the passenger seat, demonstrating her position. It appears to be critical to the analysis that the plaintiff is short and the seat is too long for her to sit with her bottom all the way to the seatback without extending her legs. That is not evident in the third of the photos put in evidence, where the plaintiff appears to be seated comfortably back in the seat. Mr. Lukar suggests that the photograph is deceiving in that regard. The sixth photo shows the plaintiff apparently striking a part of the console, but from a position well advanced from the back of the seat. The dashboard in front of the passenger’s seat is significantly farther away than an instrument panel to the left of the seat, which is what Mr. Lukar suggests the plaintiff struck.
[30]         What the photographs did appear to show was that if the plaintiff was sitting with a properly adjusted lap belt, even allowing for some stretching or body compression that would allow the plaintiff to move forward, the arc of her upper body would fall short of hitting the dashboard. In making this observation, I am not substituting my own interpretation of the evidence for that of Mr. Lukar. I am simply saying that despite his qualifications, Mr. Lukar was not able to satisfy me that what he described displaced the inference the court might have drawn without assistance. His suggestions were simply unconvincing.
[31]         The plaintiff’s counsel submitted that the court ought to accept Mr. Lukar’s evidence on the basis that an adverse inference could be drawn from the defendants’ failure to produce an expert report. That is not, in my view, a proper approach to opinion evidence. While it may be risky, counsel are entitled to rely on cross-examination and argument in relation to an expert witness as with any other witness. The defendants referred to Lakhani v. Samson, 1982 CarswellBC 2262, [1982] B.C.W.L.D. 1126, 70 B.C.L.R. 379 a decision of McEachern C.J.S.C. at para. 3:
I reject the suggestion that engineering evidence is required in these cases. The court is not required to leave its common sense in the hall outside the courtroom and the evidence is clear that upon impact in both cases the Plaintiff’s upper body was flung or thrown forward striking the dashboard or the steering wheel. And common sense tells me that the restraint of a shoulder harness would have prevented that, and therefore some of the injury from having occurred.
[32]         Sometimes experts state the obvious, in which case they are superfluous. Sometimes they do not. On those occasions, it is up to the trier of fact to decide whether the inference the expert invited has the authoritative force of training or experience, or whether it is just not helpful. Having done my best to assess Mr. Lukar’s surprising conclusion – that failure to wear a lap belt would have made no difference in this face-hit-the-dashboard collision – I am simply unable to say that I am persuaded that that is the correct inference. I assess the plaintiff’s contributory negligence at 25%.
 

BCCA – Obtaining Judgement Below Amount Sought Is Not a Proper Reason to Deprive Costs

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Reasons for judgement were released last week by the BC Court of Appeal confirming that a party who is awarded damages below the amount sought, even if significantly so, is not a reason in and of itself for depriving the party of costs.
In last week’s case (Loft v. Nat) the Plaintiff was injured in a motor vehicle collision and sued for damages.  At trial the Plaintiff sought substantial damages of over $1.8 million.  The Plaintiff’s claims were largely rejected with damages just over $60,000 being awarded.  The trial judge found that the Defendants had been largely successful and ordered that the Plaintiff pay the Defendants costs.  The Court of Appeal found this was plainly an error.  In reaching this conclusion the Court provided the following reasons:
[46]        Pursuant to Rule 14-1(9), costs in a proceeding must be awarded to the successful party unless the court otherwise orders. At its most basic level the successful party is the plaintiff who establishes liability under a cause of action and obtains a remedy, or a defendant who obtains a dismissal of the plaintiff’s case: Service Corporation International (Canada) Ltd. (Graham Funeral Ltd.) v. Nunes-Pottinger Funeral Services & Crematorium Ltd., 2012 BCSC 1588, 42 C.P.C. (7th) 416.
[47]        In this proceeding Mr. Loft was awarded damages for injuries he had suffered in the motor vehicle accident. The respondents had denied liability until shortly before trial. Although the damage award was far less than sought, Mr. Loft was the successful party. The fact that he obtained a judgment in an amount less than the amount sought is not, by itself, a proper reason for depriving him of costs: 3464920 Canada Inc. v. Strother, 2010 BCCA 328, 320 D.L.R. (4th) 637.
[48]        The trial judge’s stated reason for awarding costs to the respondents was that the respondents had been largely successful in all areas of the claim. With respect, that decision is wrong in principle and cannot stand. I note that on the hearing of the appeal the respondents did not suggest otherwise.
[49]        The fact that a party has been successful at trial does not however necessarily mean that the trial judge must award costs in its favour. The rule empowers the court to otherwise order. The court may make a contrary order for many reasons. One example is misconduct in the course of the litigation: Brown v. Lowe, 2002 BCCA 7, 97 B.C.L.R. (3d) 246. Another is a failure to accept an offer to settle under Rule 9-1. A third arises when the court rules against the successful party on one or more issues that took a discrete amount of time at trial. In such a case the judge may award costs in respect to those issues to the other party under Rule 14-1(15): Lee v. Jarvie, 2013 BCCA 515. Such an order is not a regular part of litigation and should be confined to relatively rare cases: Sutherland v. Canada (Attorney General), 2008 BCCA 27, 77 B.C.L.R. (4th) 142; Lewis v. Lehigh Northwest Cement Limited, 2009 BCCA 424, 97 B.C.L.R. (4th) 256. Whether a judge will order otherwise in any particular case will be dependent upon the circumstances of that individual action.
[50]        Costs are very much a matter of the trial judge’s discretion. In the circumstances of this case, the basis upon which that discretion was exercised was in error. That said, the trial judge remains in the best position to determine the proper costs order and to what extent, if any, the offer to settle that was made in this case should impact on costs. On the hearing of the appeal both parties suggested that if the costs appeal was allowed, costs should be referred back to the trial judge.
[51]        I would allow the costs appeal and refer the matter of costs back to the trial judge for a further determination.