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.
