Tag: Anderson v. Kozniuk

"Costs Awards Should Not Punish Plaintiffs From Taking Forward Meritorious Claims"

In a demonstration of the judicial flexibility that exists under the BC Supreme Court Rules when assessing costs consequences following trials with formal offers in place, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff full costs despite failing to beat a Defense formal settlement offer.
In today’s case (Anderson v. Kozniuk) the Plaintiff was involved in a pedestrian/vehicle collision.  Both parties were found partially at fault.  The Plaintiff suffered various physical injuries but also advanced a brain injury claim which was not accepted at trial.  Prior to trial ICBC issued a formal settlement offer of $125,000.  At trial the Plaintiff’s damages were assessed at $78,897 less 30% to reflect the plaintiff’s contributory negligence.
ICBC sought to strip the Plaintiff of post offer costs as a result but the Court exercised its discretion to award the Plaintiff full costs.  The Court was influenced by the fact that the costs of the prosecution were significant and an award of costs to ICBC would strip the Plaintiff of the totality of his damages.  In reaching this decision Madam Justice Sharma provided the following reasons:

[29]         The plaintiff submitted that the award of costs in this case exceeds the total amount of the judgment. In his written submissions, the plaintiff states that “[i]f the court orders that the Plaintiff is to pay costs to ICBC, it means that Mr. Anderson must pay the entire judgment award to ICBC, instead of spending this money on his health condition and prognosis.” I agree that is a significant factor if the court is to be mindful that costs awards should not punish plaintiffs from taking forward meritorious claims, as discussed above.

[30]         The plaintiff also says that the defendant was defended and funded by the insurer, whereas Mr. Anderson is impecunious having lost the ability to work, and previous cases have held this is a proper consideration: Smith v. Tedford, 2010 BCCA 302; Hunter v. Chandler, 2010 BCSC 1124 at paras. 23-25; Gregory v. Insurance Corporation of British Columbia, 2010 BCSC 1369 at para. 9; andMartin v. Lavigne at para. 23. I agree. Although there was no evidence before me about Mr. Anderson’s impecuniosity, I have no reason to doubt counsel’s word. Certainly at trial the evidence was consistent with counsel’s statement.

[31]         Based on these factors (and all others), the plaintiff submits it would be unfair and unreasonable that the plaintiff be ordered to pay costs to the defendant.

[32]         Finally, the plaintiff points to other factors that he says are relevant to the court’s exercise of discretion. He points out that two expert doctors did conclude that he suffered a brain injury. He also says it was not disputed that after the accident he displayed a number of characteristics consistent with having suffered a brain injury, including the fact that he had a flat affect and his behaviour around his family was different, as well as showing increased irritability, frustration and anger. The plaintiff also points out that the brain scans clearly show that he had brain lesions consistent with a brain injury. The plaintiff had increased difficulties with concentration and learning new tasks. Although I made a finding that both his alcohol consumption and anxiety had significant impacts on his life following the accident, the plaintiff suggests he should not be faulted for failing to guess that those factors would be essentially held against him when making a conclusion about whether he had a brain injury or not.

[33]         The award of costs is an exercise of the court’s discretion, guided by the legal principles identified above. This is not an exercise of counting up which factors favour which party and doing a mathematical calculation. The court must take into account all of the factors weighed against the circumstances of the case. Remembering that ultimately the result must not impose injustice or unfairness on either party, I exercise my discretion and conclude the normal rule of apportionment does not apply and therefore the plaintiff is entitled to 100% of his costs at trial. Because he has been successful on this application, I also award him the costs of this hearing.

"Analytically Weak" Expert Report Criticized in Brain Injury Prosecution

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, criticizing an expert report characterizing it as ‘analytically weak’.
In the recent case (Anderson v. Kozniuk) the Plaintiff was involved in a pedestrian/vehicle collision.  Both parties were found partially at fault.  The Plaintiff suffered some orthopaedic injuries and also alleged the collision caused a traumatic brain injury.  The Court heard competing evidence regarding this and ultimately concluded that no brain injury occurred as a result of the crash.  In rejecting the Plaintiff’s evidence the Court provided the following critical comments about the expert evidence in support of the claim:
[128]     Dr. Ancill greatly diminished or completely ignored clinical records, such as the ambulance Crew Report and Royal Columbian Hospital clinical records. His explanation for doing so was the people filling those forms probably asked the wrong question of Mr. Anderson (“what happened?” instead of “what do you remember?”). Dr. Ancill does not know and did not enquire what questions were asked by the people who completed the clinical records. He simply assumed the wrong question was asked and ignored their observations. In my view, Dr. Ancill has exaggerated the importance of which question is asked, especially when interviewing a patient years after the Accident.
[129]     Dr. Ancill took all of Mr. Anderson’s and his mother’s description of Mr. Anderson’s changed behaviours at face value. Obviously, psychiatric assessment relies heavily on patient’s self-report. But it is expected that psychiatrists will exercise their skills and knowledge to assess the subject’s mood and behaviour in light of all circumstances, especially medically significant factors, in order to reach an accurate diagnosis. In my view, Dr. Ancill did not do that. I find that he summarily dismissed or greatly diminished the importance of objective evidence recorded close in time to the Accident and recorded by people trained to assess patients’ conditions for injury (the clinical records). This treatment of the clinical records is, in my view, highly problematic…
[131]     It is curious that Dr. Ancill suggested that even a “brief” loss of consciousness (in this case he assumed as little as 30 seconds) was medically significant. This was expressly contradicted by Drs. Siu, Prout and O’Shaughnessy who stated a “brief” period of loss of consciousness or disorientation that typically accompanies a mild traumatic brain injury would be about between 15 and 30 minutes. There is simply no evidence that Mr. Anderson was either unconscious or disorientated within the 30 minutes following the Accident, or at all.
[132]     Dr. Ancill also ignored or gave little relevance to factors that may very well have impacted his opinion, such as Mr. Anderson’s anxiety and his history of alcohol use.
[133]     Dr. Ancill provided a rebuttal report. Rather than respond to Dr. O’Shaughnessy’s criticisms of his methodology and conclusions, Dr. Ancill merely provides a clarification of his earlier report. In my view, the second report does not clarify the first report, and it is unhelpful. I place no weight on it…
[135]     Overall, I find Dr. Ancill’s evidence unreliable for all the reasons above. I also find his expert report analytically weak. Many conclusions are stated with little reasoning. His rebuttal report in particular is akin to an argument justifying his earlier conclusions rather than a response to Dr. O’Shaughnessy’s significant criticisms of his methodology and medical reliability. I place minimal weight on Dr. Ancill’s evidence.
 

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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