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Scale C Costs Awarded Following Injury Prosecution "Of More Than Ordinary Difficulty"

Written by admin on . Posted in BC Supreme Court Costs Cases. 47 Comments on Scale C Costs Awarded Following Injury Prosecution "Of More Than Ordinary Difficulty"

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, illustrating circumstances when increased “scale c” costs are appropriate.
In the recent case (Wallman v. Doe) the Plaintiff suffered a disabling brain injury following a motor vehicle collision and was awarded damages following a lengthy trial.  The Plaintiff was awarded costs on Scale C and in finding this increased scale was appropriate Mr. Justice Weatherill provided the following reasons:
6]             By any measure, this was a complex case that, although courteously and cooperatively fought, was nevertheless hard fought with little, if anything, conceded. The defendants’ position throughout was that the plaintiff’s alleged brain injury was not real. The trial occupied 29 days. Forty‑three witnesses were called by the parties, including 16 engineering and medical experts. Sixteen expert reports were exchanged.
[7]             The engineering experts provided opinions regarding the biomechanics of and the acceleration and other forces imparted upon a human body during a rear‑end collision, mechanical engineering, accident reconstruction, and Monte Carlo simulations to predict the probability of various accident scenarios.
[8]             The medical expert evidence included opinions of psychiatrists, psychologists, neurologists, a neuro‑opthalmologist, physiatrist and a speech pathologist.
[9]             In addition, there was expert evidence from occupational therapists, rehabilitation and vocational consultants, and economists.
[10]         The defendants conducted several pre‑trial examinations of nine witnesses, conducted two and a half days of examinations for discovery of the plaintiff, during which he was asked 2,669 questions. Considerable steps were taken by the parties in an effort to prove or disprove the plaintiff’s claim that he had suffered a mild traumatic brain injury during the accident. Most, if not all, of the expert evidence was focused on whether the plaintiff sustained a mild traumatic brain injury as a result of a relatively minor rear‑end impact during the accident.
[11]         In addition, there were several pre‑trial applications, most of which were of ordinary difficulty, but one involved the plaintiff’s successful motion to strike the defendants’ jury notice on the basis that the case had become complex and would be too lengthy for a jury to retain the evidence. This application was the subject of two hearings in the Court of Appeal.
[12]         In my view, this action was plainly one of more‑than‑ordinary difficulty. The plaintiff is entitled to an award of costs at Scale C.
 

Costs Ordered Following "Unnecessary" Defence Case Planning Conference

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 5, Civil Procedure. 45 Comments on Costs Ordered Following "Unnecessary" Defence Case Planning Conference

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, addressing when Case Planning Conferences are unnecessary and finding that a costs order is appropriate in the face of such a CPC.
In today’s case (Stewart v. Robinson) the Plaintiff was involved in a collision and sued for damages.  The Defendant set down a CPC seeking an order requiring the Plaintiff to reveal the “the areas of expertise” of the experts the Plaintiff would rely on at trial.  The Defendant also sought a few collateral orders such updated lists of documents and timelines for discoveries.  The Court held that the first order was one the Court had no jurisdiction to make and that the further orders were unnecessary given that the Plaintiff was fulfilling their disclosure duties under the Rules of Court.
Master Bouck dismissed the Defendant’s application and in doing so found it was an uncessary hearing and ordered that costs be paid.  In reaching this result the Court provided the following reasons:
[25]         Rule 5-3 (3) requires the court to make a case plan order following a CPC. In my view, that requirement presumes that the CPC served some purpose…
[28]         The plaintiff submits that the sole purpose of the case planning conference was an attempt by the defence to ferret out information about the plaintiff’s experts even though such a purpose is contrary to well-established law. The plaintiff also cites Galvon v. Hopkins, 2011 BCSC 1835, and Amezcua v. Norlander, 2012 BCSC 719 (Master)…
[34]         Read together, the above authorities stand for these propositions:
1.  rules of civil procedure do not trump substantive law, including the principle of litigation privilege;
2.  a party is not required to reveal, in a case plan proposal or order or otherwise, the name of any expert or the area of expertise of any intended expert before the 84-day deadline for the service of expert reports; but
3.  the court may order that the service requirements under Rule 11-6 (3) be abridged such that expert reports are to be served earlier than the 84 days before trial. Such an order will only be made in exceptional cases where a compelling reason for early disclosure is demonstrated.
[35]         While a party may volunteer details of their expert evidence in advance of the 84-day deadline, a CPC is not required for that purpose. The information can simply be provided in correspondence without the necessity of judicial involvement. As the court determined in Dhugha, the omission of the name of an expert or his or her area of expertise from a case plan order does not preclude the admission of that expert evidence at trial.
[36]         Thus, the order sought in the defendant’s case plan proposal with respect to experts could not be made by the court. The order proposed by the defence at the CPC with respect to experts is not necessary.
[37]         That leads to the next question: was a CPC necessary for any other purpose? In my view, it was not.
[38]         An order requiring the parties to exchange further amended lists of documents by certain dates is not necessary. Both counsel acknowledge the duty to provide ongoing document disclosure as required by theSCCR. The suggested deadlines micromanages a case that does not require such management.
[39]         An order requiring delivery of a certain therapist’s records by a specified date is also not required. The plaintiff has volunteered to provide those records.
[40]         An order identifying the timing and length of examinations for discovery is also unnecessary. The parties have agreed to examination dates. The length of these examinations was not seriously in dispute at this conference and did not require judicial management.
[41]         In short, I find that no case plan order ought to or need be made at this time…
[46]         Having already concluded that the CPC was unnecessary, I award the plaintiff costs related to counsel’s preparation and attendance and the conference. Those costs are fixed at $750 all inclusive, not payable forthwith.
 

$48,000 Non-Pecuniary Assessment For Soft Tissue Injuries With Tinnitus

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for largely recovered soft tissue injuries with associated tinnitus.
In today’s case (Pichugin v. Stoian) the Plaintiff was involved in a modest rear end collision in 2010.  Fault was admitted.   The Plaintiff was uninjured at the scene but shortly thereafter started to experience neck and back pain.  These symptoms largely recovered by 2012.  In addition to the soft tissue injuries the Plaintiff suffered from tinnitus which was caused secondary to his whiplash injury.  In assessing non-pecuniary damages at $48,000 Mr. Justice Skolrood provided the following reasons:
[66]         I find on the evidence that Mr. Pichugin suffered soft tissue injuries to his neck and back as a result of the accident. Those injuries caused him pain and discomfort for approximately one and a half years after the accident but he improved steadily and his symptoms were largely resolved by the fall of 2012. However, I accept that he continues to experience periodic pain and discomfort in his neck and back, of relatively minor severity, largely related to physical activity…
 
[71]         I am satisfied that Mr. Pichugin’s tinnitus was caused by the accident. Dr. Longridge’s opinion to this effect is supported by the scientific literature as reflected in the Folmer and Greist paper. Even absent the findings in that paper, Dr. Longridge noted again that physicians have long recognized that whiplash can cause tinnitus. The defendant has not established any other likely, or even possible, cause that would serve to undermine Dr. Longridge’s opinion.
[72]         In terms of the impact of his condition on his activities and lifestyle, Mr. Pichugin testified that he is less able to help his wife with things like vacuuming and grocery shopping. However, it was also clear from the evidence that overall Mr. Pichugin is more active than he was prior to the accident as he has increased his activity level following his heart attack.
[73]         With respect to the tinnitus, he testified that while it sometimes causes him difficulty in getting to sleep, once he is asleep it does not interfere with the quality of his sleep. Moreover, he was unable to say with any degree of certainty how much sleep he loses as a result of the condition. Apart from some disruption while reading, there was no evidence that the condition otherwise interferes with his work or his recreational activities…
85]         In my view, the severity and effects of Mr. Pichugin’s tinnitus are less than what was experienced by the plaintiff in Yang and more in line with the condition suffered by the plaintiff in Maddex. However, Mr. Pichugin’s soft tissue injuries were more severe than those of the plaintiff in Maddex. Taking all of the circumstances into account, I find that an appropriate award of non-pecuniary damages is $48,000.
 

Summary Trials Are Not Trials For the Purpose of Discontinuing Lawsuits

Written by admin on . Posted in BCSC Civil Rule 9. 54 Comments on Summary Trials Are Not Trials For the Purpose of Discontinuing Lawsuits

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether a Plaintiff can discontinue a lawsuit when a matter is set for summary trial.
In today’s case (Binary Environments Ltd v. Batyka) the Plaintiff brought a lawsuit which was set for a summary trial following a case planning conference.  Before the summary trial took place the Plaintiff unilaterally discontinued the lawsuit relying on Rule 9-8(1) which reads “At any time before a notice of trial is filed in an action, a plaintiff may discontinue it in whole or in part against a defendant by filing a notice of discontinuance in Form 36 and serving a filed copy of the notice of discontinuance on all parties of record.”.
The Defendant brought a motion seeking to set aside the discontinuance arguing “the Plaintiff cannot escape by the side door” on the cusp of summary trial.
Mr. Justice Ball dismissed the motion finding the Plaintiff was within their rights in discontinuing finding that a summary trial is not a notice of trial.  In reaching this conclusion the Court provided the following reasons:
[25]         Additionally, setting aside the notice of discontinuance would also be contrary to Rule 9-8(1) as setting a matter for summary trial is not the same as setting a matter for a full trial: Strata Plan No. 36 v. Wilson, [1998] B.C.J. No. 308 (S.C.) at para. 12. A summary trial is a distinct mechanism with its own procedures and safeguards: Inspiration Mgmt. Ltd. v. McDermid St. Lawrence Ltd., [1989] B.C.J. No. 1003 (C.A.).
[26]         I therefore decline to set aside the plaintiff’s notice of discontinuance and dismiss that application.
The Court did, however, order that the discontinuance be with prejudice should the Plaintiff ever start similar litigation.  In exercising its discretion under Rule 9-8(8) the Court reasoned as follows:
[23]         Rule 9-8(8) provides:
Unless the court otherwise orders, the discontinuance of an action in whole or in part is not a defence to a subsequent proceeding for the same or substantially the same cause of action…
[31]         The final matter which must be decided here is whether the notice of discontinuance filed by the plaintiff be order to be a defence to any subsequent proceeding for the same or substantially the same cause of action. From the review conducted by counsel for defendant of the affidavits prepared support of the summary trial application taken together with the admission by counsel for the plaintiff that he was instructed to call no evidence in the event this matter did come forward for trial, the only rational conclusion can be drawn is that this matter must in fairness finally come to an end. I therefore pursuant to Rule 9-8(8) that discontinuance of action is a defence may subsequent proceeding or the same or substantially the same cause of action.
 

Case Planning Conference Transcripts Are Tough To Come By

Written by admin on . Posted in BCSC Civil Rule 7.

BC Supreme Court  Rule 5-2(7) states that “proceedings at a case planning conference must be recorded, but no part of that recording may be made available to or used by any person without court order“.  The few cases released to date interpreting this rule have made it clear that the Court is reluctant to deviate from this fall back position.  Reasons for judgement were released today the BC Supreme Court, Nanaimo Registry, following this trend.
In today’s case (Darel v. Samy) a variety of orders were made at a case planning conference.  The Plaintiff applied for reasons to be published arging that these were desirable “for the intended purpose of bringing the “conduct” of the defendants “to light”. ”
Master Bouck rejected this request and in doing so provided the following brief reasons:
[5]             The plaintiff’s request for release of the transcript is denied for the reasons articulated in Parti v. Pokorny. Firstly, a transcript is not required to resolve any dispute about the terms of the case plan order. Second, there is no precedential value in any of the terms of the order. Third, the court does not issue reasons for judgment at the request of a party. And finally, the comments of a presider are not rulings or reasons.
 

Excessive Drug Use Linked To Collision Related Injuries, Non-Pecuniary Loss Assessed at $100,000

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Chronic Pain Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether a Plaintiff’s drug abuse problems were caused by collision related injuries.
In today’s case (Fabretti v. Gill) the Plaintiff was 12 years old when involved in a serious head on collision which killed the occupants in the at fault vehicle.  The Plaintiff suffered a mild brain injury, a variety of soft tissue injuries and chronic, but not disabling, pain.  Subsequent to this the Plaintiff started abusing drugs which negatively impacted his life.  At trial the Court found that the Plaintiff’s substance abuse difficulties were linked to the collision related injuries.  In assessing non-pecuniary damages at $100,000 Madam Justice Kloegman provided the following reasons:
[77]         Dr. Lu stated that it was impossible to know whether or not the plaintiff would have developed an addiction in the absence of the 2005 Accident. Once again, the plaintiff does not have to prove to a scientific certainty that he would not have developed a drug addiction but for the Accident, only that it is more likely than not it was caused by the Accident. On the totality of the evidence, I find on a balance of probabilities that the plaintiff’s drug addiction was caused by the Accident.
[78]         ICBC argues that a causal connection between the Accident and the plaintiff’s addiction can be shown only if the plaintiff’s alleged reason for the drug use as a coping mechanism or reaction to the chaos that followed the Accident is found to be true. ICBC submits that this allegation can only hold true if the plaintiff and his family were found to be credible. I do find the evidence of the Fabrettis to be credible and consistent with the clinical records, so this submission fails.
[79]         ICBC points to evidence that the plaintiff might have started drugs before the Accident, and in response to peer pressure to which he would have been exposed in any event.
[80]         This proposition of ICBC was put to Dr. Lu during cross-examination. He explained that although prior use may increase risk, many people experiment with recreational drug use but only a small percentage go on to develop an addiction. By age 15, 60% of people living on the west coast in Canada have tried marihuana. More than 80% of people experiment with drugs, but less than 10% become regular users. Dr. Lu had no doubt that the Accident caused the plaintiff’s addiction.
[81]         Accordingly, I find that the plaintiff’s drug addiction was more likely than not caused by the Accident…
[91]         On a balance of probabilities, I find that the plaintiff has no permanent physical disability arising from his injuries. He has no lasting cognitive effects from the Accident. The impact of his chronic pain on his function does not amount to an impairment and should not disable him from employment, although his capacity to perform all forms of employment to the same degree as before the Accident may have been realistically affected. At present his marihuana consumption is a negative factor in his full functional recovery, and must be brought under control. From the evidence, the success of the plaintiff’s future is highly dependent on eradicating his excessive drug use. The plaintiff had the wherewithal to stop his cocaine and MDMI use in high school without assistance. I believe the plaintiff, with the help of his family and professional addiction treatment, has the fortitude to overcome his dependency on marihuana. Nonetheless, I am aware that like any other addict, he will always be at risk of relapse…
[97]         From the cases cited to me, I found the decisions of Houston v. Kine, 2010 BCSC 1289 and Parfitt v. Mayes et al, 2006 BCSC 125 to be the most helpful. In Parfitt, the court accepted that the plaintiff did not have a permanent disability. In Houston, the court found that the prognosis was favourable with appropriate treatment. I find the impact of the plaintiff’s injuries to be slightly less than both the plaintiffs in Parfittand Houston. Accordingly I award the plaintiff the sum of $100,000 for pain and suffering.
 

$30,000 Non-Pecuniary Assessment for Meralgia Paresthetica With Good Prognosis

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for right leg numbness following a motor vehicle collision.
In today’s case (Saopaseuth v. Phavongkham) the Plaintiff was involved in a 2011 rear end collision.  The Plaintiff suffered soft tissue injuries which recovered within 10 weeks.  Several weeks later the Plaintiff started experiencing numbness in his right leg which was diagnosed as meralgia paresthetica.  Given the time lapse of onset of symptoms the trial largely focused on whether these were related to the crash and ultimately the Court concluded they were.   The symptoms had a favorable prognosis for full recovery and in assessing non-pecuniary damages at $30,000 Mr. Justice Bernard provided the following reasons:
[56]         Mr. Saopaseuth is a 50-year old single man, with no dependents, who, immediately following the MVA, suffered from acute pain and discomfort in his chest, neck and back. He responded well to physiotherapy and these injuries resolved within eight-to-ten weeks. In this relatively short period he took time away from work and managed his household with some assistance from his friends. Mr. Saopaseuth leads a relatively simple and quiet life.  There is no evidence that these injuries caused great personal suffering or had a dramatically negative impact upon his lifestyle and relationships.
[57]         Mr. Saopaseuth began to suffer from MP in his right leg in or about early May 2011; since then it has persisted. The MP has been an irritant and a worry in this protracted period; however, there is no evidence that it has significantly affected his lifestyle or his relationships.
[58]         Significantly, since early 2014 Mr. Saopaseuth has experienced considerable amelioration of his MP, and Dr. Armstrong was pleased to learn of it. It is consistent with Dr. Armstrong’s opinion that Mr. Saopaseuth’s condition is treatable with rehabilitative therapy, although Mr. Saopaseuth has yet to be treated specifically for SPRD…
[60]         Each of the aforementioned cases is, in material aspects, distinguishable from the instant case; nonetheless, they offer a helpful guideline for the assessment of Mr. Saopaseuth’s damages. Taking into account the nature and duration of Mr. Saopaseuth’s various injuries, the relatively modest impact they have had upon him, his relationships, and his lifestyle, and his very favourable prospects for either significant improvement or full recovery from his MP, I assess his non-pecuniary damages at $30,000.
 

$1.8 Million Diminished Earning Capacity Award Made Following Disabling Severe Brain Injury

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Wage Loss.

Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, tacking an interesting problem, the assessment of damages for a lifetime of disability for a Plaintiff who has yet to enter the workforce.
In today’s case (Hermanson v. Durkee) the Plaintiff was involved in a motor vehicle collision and sustained a “severe traumatic brain injury“.  The injury rendered the Plaintiff competitively unemployable.  He was 18 at the time and had just graduated high school and had yet to enter the workforce.   He “did not excel academically” and “it became apparently that post-secondary education was not likely or realistic“.
The Court had to grapple with what the Plaintiff’s lifetime earnings would have been.  The Plaintiff argued that he would have likely worked in the trades in Alberta’s lucrative oil industry and had lifetime earnings between $2.8 and $3.3 million.  The Defendant argued that his earnings would be more in line with the statistical average for high school graduates and suggested an earning capacity of just over $1 million.
Mr. Justice Betton found both positions were went “too far in their respective directions” and found a likely lifetime earning capacity of $1.8 million.  In arriving at this figure the Court provided the following reasons:
[106]     In my view, both positions go too far in their respective directions.
[107]     It is my conclusion that Mr. Hermanson would have likely pursued a trade in the higher earnings spectrum of those that the economists have concluded he could have done pre-accident.
[108]     In considering the evidence of the individual earnings levels as presented by witnesses for the plaintiff, significant caution must be exercised. Neither economist was asked specifically why they did not consider specific earnings levels of specific individuals, but in circumstances such as these, there is a strong argument to be made that statistics which, by necessity, blend high income earners, such as those presented by the plaintiff, with those who have not achieved such earnings is a more reasonable approach. Not all of the witnesses who were called had indicated that it was their intention to stay in their high earnings positions in Northern Alberta, and it seems logical that many, including possibly Mr. Hermanson had he gone to the oil industry at all, would feel the same. On the other hand, one must recognize that Mr. Hermanson is part of a social group, many of whom had elected, at least in their early years of employment, to pursue such jobs.
[109]     In my view, such evidence is merely a consideration in assessing the value of the lost capital asset. There is certainly a substantial possibility that Mr. Hermanson would have, at least in the short term, pursued such work. It is difficult to measure the likelihood of that and even more difficult to determine how long he might have stayed in such a position.
[110]     The defence argued that the plaintiff might have retired early like his mother. While that is a possibility, such a decision would logically flow from a relatively high earnings stream and/or prudent savings habits to enable such a decision. It is not reasonable for the defence to say that the plaintiff would have both been a low earner with limited motivation and retired early.
[111]     In my view, the appropriate assessment of the plaintiff’s pre-injury earnings capacity is $1,800,000.
 
 

NHL Player's Wage Loss Claim Not "Too Complex" For a Jury

Written by admin on . Posted in BCSC Civil Rule 12. 46 Comments on NHL Player's Wage Loss Claim Not "Too Complex" For a Jury

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether a Jury was capable of determining an NHL player’s wage loss claim in a personal injury lawsuit.
In today’s case (Franson v. Caldarella) the Plaintiff, Cody Franson, was injured a in 2008 collision.  At the time he “was in the second year of a three-year Entry Level two-way contract with the National Hockey League (NHL) and the American Hockey League (AHL), and was in training camp preparing for tryouts for the Nashville Predators.”
The lawsuit claimed that the collision related injuries delayed his entry into the NHL by one year.  He claimed damages for loss of opportunity for this year and further alleged that his subsequent NHL contracts would have been more favorable had the delay not occurred.  The Plaintiff brought an application to strike the Defendant’s jury notice arguing that the intricacies of NHL contract negotiations are too complex for a jury.  Madam Justice Fisher disagreed and dismissed the Plaintiff’s application.  In doing so the Court provided the following reasons:
[21]         The essence of the plaintiff’s position is that issues (2) and (3) will require answers to questions which rely on complex technical evidence. The main questions as I understand them are:
(a) What were the chances that the plaintiff would have played any games for Nashville in the 2008-2009 season?
(b) If his chances were good, how many games would he have played?
(c) If he had played a certain number of games in that season, would he have been able to negotiate more favourable terms in his contract in subsequent years as a Restricted Free Agent?..
[26]         The plaintiff submitted that the trier of fact will be required to understand the methodology, assess it, and determine which statistics and methodology is appropriate in order to calculate these damages. I do not disagree that the trier of fact will have to understand the methodology used by Mr. Gurney but I question whether it will be necessary to determine another appropriate methodology and apply that. These kinds of hypothetical damages in circumstances of uncertainty are not normally assessed by way of a mathematical calculation. The expert evidence is presented as a tool to assist the trier of fact in its assessment. In my view, a jury will be capable of understanding Mr. Gurney’s methodology when it is properly explained and it will also be capable of assessing the criticisms of that methodology by Prof. Weiler.
[27]         It is my view that a jury is capable of assessing this kind of evidence and determining the issues arising from it, including the use of hypotheticals and contingencies, with proper direction.
[28]         Moreover, this will not be in inordinately long trial, set for up to 14 days, a time estimate that is reasonable given the number of witnesses and issues to be addressed. In my opinion, a jury will be able to understand the evidence and retain that understanding for the length of the trial.
[29]         For all of these reasons, the plaintiff’s application is dismissed.
 

Defendant Fails "To Recognize The 'Capital Asset” Approach"; Ordered To Pay Double Costs

Written by admin on . Posted in BCSC Civil Rule 9, Uncategorized.

Update August 5, 2015 – The below damages for Diminished Earning Capacity were overturned by the Court of Appeal and a new trial was ordered on the issue.
_____________________________________
Reasons for judgement were released today by the BC Supreme Court, Penticton Registry, ordering a Defendant to pay double costs for refusing to accept a bested pre-trial formal settlement offer.  In reaching this result the Court was critical in the Defendant’s failure to appreciate the ‘capital asset’ approach in assessing diminished earning capacity awards.
In this week’s case (Ostrikoff v. Oliveira) the Plaintiff was injured in a 2009 collision.  Prior to trial the parties exchanged a variety of formal settlement offers with the Plaintiff’s last offer coming in at $325,000 and the Defendant’s last offer being $100,000.  The matter proceeded to trial where damages of over $550,000 were assessed.  The Plaintiff was awarded post offer double costs and in finding the Defendant should have accepted the Plaintiff’s offer the Court provided the following comments:
[11]         The plaintiff, on the other hand, marshalled a combination of both expert and lay evidence.  The essence of the plaintiff’s case was that the plaintiff was involved in unique and highly skilled work which had a significant physical component and that the plaintiff’s chronic pain and physical impairments threatened both his business and his sole means of livelihood.  The uncontradicted expert evidence was that the plaintiff was not a suitable candidate for retraining. 
[12]         All of this was known to the defendant well before the trial began.  Expert reports had been delivered from orthopaedic surgeons, treating physicians, a functional capacity evaluator, a vocational consultant, a cost of care consultant, and an economist (regarding future loss multipliers).  No rebuttal reports were prepared by the defendants and much of the evidence was uncontradicted at trial.
[13]         Plaintiff’s counsel provided the defendant with a detailed rationale for the quantum of the first settlement offer in the amount of $325,000 made on March 8, 2013.  The nature and structure of the claim became obvious at that point, if it had not already been obvious beforehand.  Service of the plaintiff’s expert reports would have alerted the defendant to the possibility of a very significant claim being presented and possibly succeeding at trial. 
[14]         The only submission made by the defendant in defence of its refusal to accept the plaintiff’s settlement offer is that there was an absence of any “documented pecuniary loss” and of any expert or other reliable evidence supporting any pecuniary loss, whether past or future.  The submission, and indeed the defence’s entire approach to both the case and the settlement offer, fails to recognize the “capital asset” approach to assessment of damages for both past and future earning capacity in circumstances where the financial loss is not easily measurable. 
[15]         In my opinion, the February 17, 2014 settlement offer made by the plaintiff was reasonable and one that ought reasonably to have been accepted by the defendant before the commencement of trial.  A careful assessment of the strength of the plaintiff’s case on the eve of trial, having regard to the expert reports and the proposed lay testimony, as well as the principles of damages assessment in chronic pain cases involving potentially significant loss of capacity would have, and should have, resulted in a conclusion that a recovery at trial of sums in excess of the offer was a realistic prospect.  Instead, relying almost exclusively on tactics limited to cross-examination and putting the plaintiff to strict proof of his case, the defendant chose to proceed to trial to see what might happen.  Defendants are free to litigate the case in such fashion as they consider appropriate.  But as stated in Hartshorne, above, “[l]itigants are to be reminded that costs rules are in place to encourage the early settlement of disputes by rewarding the party who makes a reasonable settlement offer and penalizing the party who declines to accept such an offer”.
[16]         For these reasons, I exercise my discretion to award party and party costs to the plaintiff under Scale B up to February 17, 2014, and double that scale for all steps taken in the proceeding thereafter.