Skip to main content

Tag: McLaren v. Rice

Rule 37B – Formal Settlement Offers and Liability Trials

It is not uncommon for personal injury lawsuits to sever the issues of quantum and liability.  What this means is that with a Court order a lawsuit can proceed on the issue of fault first and leave the issue of the value of the claim for a later date.  This often makes sense in serious injury litigation with contested liability where the cost of proving damages will be expensive and the parties wish to save the money associated with this until its clear who is at fault for an accident.
As readers of this post know Rule 37B permits the Court to reward a successful party in a lawsuit with a double costs award if that party beats a formal settlement offer.  In cases addressing quantum its easy to determine if a formal offer was beat at trial.  You simply look at the numbers.  But can Rule 37B be used in a liability only trial?  Reasons for judgement were released today dealing with this issue for what I believe is the first time.
In today’s case (McLaren v. Rice) the Plaintiff made a personal injury claim against the various defendants.   Liability and quantum were severed.  Before the liability trial proceeded the Plaintiff made the following formal settlement to the Defendants:

The plaintiff, Matthew R.J. McLaren, offers to settle the liability trial in this proceeding on the following terms: that the defendant is 99 percent responsible for the motor vehicle accident of February 26, 2005, in which the plaintiff was a passenger in the vehicle owned and operated by the defendants and costs in accordance with Rule 37B.

The plaintiff reserves the right to bring this offer to the attention of the court or consideration in relation to costs after the court has rendered judgment on all other issues in this proceeding relating to liability for the accident.

This offer was rejected.  The Plaintiff proceeded to trial and was successful with the Court finding that the defendants were jointly and severally liable for the accident.

The Plaintiff brought a motion seeking double costs under Rule 37B.  The Defendants opposed this arguing that when the plaintiff added the words “relating to liability in this proceeding” to the offer it was rendered null because it did not comply with Rule 37B(1)(c)(3) which requires a formal offer to contain the following sentence “the…[name of the party making the offer]…reserves the right to bring this offer to the attention of the court for consideration in relation to costs after the court has rendered judgement on all other issues in this proceeding“.

Mr. Justice Brooke rejected this argument and held that Rule 37B can be used in liability only trials.  The Court provided this short but helpful analysis:

[7] Despite the prescribed formulation in Rule 37B, 1(c)(3) being added to with the words “relating to liability in this proceeding”, I am satisfied that the plaintiff has complied with the definition of offer to settle contained in Rule 37B(1) and the issue is properly before me. On the trial of the quantum issue, it seems to me that Rule 37B may again be invoked. The two aspects of the trial are separate and discrete.

In my continued efforts to get us all prepared for the New BC Supreme Court Civil Rules I will again point out that Rule 37B will be replaced with Rule 9 under the New Rules. The new rule uses language that is almost identical to Rule 37B which should help cases such as this one retain their value as precedents.

Expert Evidence and Litigation Privilege

It is common for lawyers involved in personal injury claims to retain the services of expert witnesses.  The most common expert witnesses are medical doctors but often engineers, economists, and other specialists are brought into the fray.
Experts are typically retained to be involved in two common roles.  The first role is to provide expert opinions to assist the judge or jury to understand the evidence called at trial.  The second is to assist counsel in preparing the case for trial.  When experts are retained to assist counsel to prepare for trial the communications between the expert and the lawyer are confidential and subject to litigation privilege.
When an expert takes the stand and gives opinion evidence they are subject to a cross-examination that is quite wide in scope.  Does this permit the opposing side to ask questions about the confidential opinions and advice the expert gave the lawyer that retained him prior to trial?  Not necessarily.  Reasons for judgement were transcribed today by the BC Supreme Court, Vancouver Registry, dealing with this issue.
In today’s case (McLaren v. Rice) the Defendants to a car accident claim hired an engineer who was qualified to give expert opinion evidence regarding accident reconstruction and speed and speed changes.  During cross examination the lawyer for the Plaintiff asked whether the defence lawyer sought his opinion with respect to a vehicle’s tie-rod and ball-joint assembly.  The Defence lawyer objected to the question claiming it addressed matters that were protected by litigation privilege.  Mr. Justice Brooke upheld the objection and in doing so summarized and applied the law as follows:

[4] In the recent decision of Madam Justice Satanove in Lax Kw’alaams, 2007 BCSC 909, the nature and extent of litigation privilege was considered.  At paragraph 9, Justice Satanove referred to the decision in Delgamuukw where it was said that litigation privilege was waived when the expert witness was called, but that that waiver was to be narrowly construed and privilege maintained when it was fair to do so.

[5] In Vancouver Community College v. Phillips, Barratt (1987), 20 B.C.L.R. (2d) at 289 (S.C.), Justice Finch, as he then was, recognized that even where an expert is called as a witness he may remain a confidential advisor to the party who called him at least in regard to advising on cross-examination of the other side’s witnesses, including the other side’s expert witnesses.

[6] In Lax Kw’alaams as well as in Barratt, the issue was the production and cross-examination on documents that had been prepared by the witness.  As I understand it, here all privileged documents are set out in part 3 of the document disclosure of the defendant and there is no suggestion that there are undisclosed documents.

[7] What the plaintiff wishes to cross-examine upon is not documents, but oral advice or opinions or commentary concerning the tie-rod assembly and ball joint, an area which the report of Mr. Brown does not pretend to address.

[8] I find, if Mr. Brown was asked questions out of court regarding the tie-rod and ball-joint assembly it was to assist the defendant in its defence of the plaintiff’s claim and specifically the allegation that the collapse of the tie-rod and ball-joint assembly caused the accident in which the plaintiff sustained devastating injuries.

[9] In my opinion, it would not be fair to require Mr. Brown to answer questions directed to matters outside the scope of his report because it could give the plaintiff an advantage not available to the defendant.  Here I refer to paragraph 29 of Barratt.  Moreover, to permit such cross-examination would cast a chill over the ability of counsel for both plaintiffs and defendants to properly prepare their client’s case and also to answer the other party’s case.  In the result, the objection of the defendant is sustained.