When Personal Injury Plaintiffs are awarded damages for costs associated with future medical care they are expected to invest the money and draw from this fund to pay for their future care needs over their lifetime. The difficulty is that while personal injury damage awards are not taxable, investment income is. To account for this Trial Judges have the ability to award further damages to set off these tax consequences. This is called a “tax gross up” award. Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, addressing this area of law.
In today’s case (Sartori v. Gates) the Plaintiff was awarded damages by a Jury which included $41,000 for cost of future care. The Plaintiff applied for a tax gross up and presented an actuarial report which concluded that approximately $10,000 would be necessary to offset the investment tax consequences from the cost of care award. ICBC presented contrary evidence arguing that an award of $3,000 would be appropriate.
The main reason for the difference in the economists opinions was whether the Court could consider tax minimizing strategies in quantifying a tax gross up award. Ultimately the Court held that these can be considered, however, the whole of these strategies are not to be applied solely to the damage award for cost of future care. Mr. Justice Wilson provided the following practical reasons:
 In result, I find the tax free savings account benefits to be a lawful consideration in defining the tax gross up amount. That said, however, Townsend is also authority (among many, many others) for the principle that, “compensation aims at restoring the victim to the position that person would have been in had no loss been incurred”.
 A cost of future care award is founded on the theory that the tortfeasor must provide a fund from which the victim may draw to meet future expenses as they occur. It is a presumption of law that the fund will be invested and will earn income. According to the theory, as I understand it, the fund and its income, is a separate stand-alone phenomenon. It appears to me that Mr. Szekely has treated it as such in his analysis. Therefore, the tax benefits available to the plaintiff, by virtue of a tax free savings account, are exhausted in this separate stand-alone account.
 Commencing 1 January 2009, the plaintiff has been entitled to the tax benefits of a tax free savings account. It seems to me that if I assign all of the tax benefits, from a tax free savings account, to this stand-alone account, then I will not be restoring the plaintiff to the position he would have been in had no loss been incurred. To put it in Mr. Wickson’s terms, adopting Mr. Szekely’s approach, fails to recognize the plaintiff’s right to use the tax free savings account for his “first slice” income.
 I have considered the tax benefits of a tax free savings account as a legitimate factor in determining the tax gross up and having done so, I conclude that in this particular case, Mr. Szekely’s calculations are not applicable in the determination of the tax gross up amount…
 Finally, the fund available to meet the plaintiff’s costs of future care is $41,333.33. I find it is more probable than not that the income to be earned from the investment of this fund will be interest income. Therefore, I make no allocation for capital gain or dividend income and assess the tax gross up at $10,025.
I’ve written many times about the role expert witnesses play in injury claims. From diagnosing injury, commenting on causation, prognosis, future care needs and disability expert witnesses play a crucial role in ICBC and other injury lawsuits.
In addition to experts called by the Plaintiff, the Rules of Court also permit the Defendant to retain their own experts in order to ‘level the playing field‘.
Expert witnesses owe a duty to the Court to present their opinions impartially and not to act as advocates for the side that hired them. Sometimes, regrettably, experts forget this and stray into the field of advocacy. When this happens the expert’s opinion can be rejected entirely or even be kept from entering into evidence in the first place. Today reasons for judgement were released by the BC Supreme Court, Nanaimo Registry, discussing this area of the law.
In today’s case (Hodgkins v. Street) the Plaintiff was involved in a BC Car Crash and was awarded damages of just over $650,000. (You can click here to read my post summarizing the trial judgement) The parties could not agree on what damages should be awarded for a tax gross-up award and management fees and a Court application was brought.
Both the Plaintiff and Defendant produced expert reports from economists. The Plaintiff argued that the Defence report ought to be rejected in its entirety because the defence expert was a “partisan advocate“. Mr. Justice Kelleher disagreed with this submission but before reaching this conclusion gave the following useful summary on the role of expert witnesses in BC litigation:
 In Tsilhqot’in Nation v. Canada (Attorney General), 2005 BCSC 131 at para. 32, the court referred to the duties and responsibilities of expert witnesses discussed in National Justice Compania Naviesa S.A. v. Prudential Assurance Co. Ltd. (“The Ikarian Reefer”),  2 Lloyd’s Rep. 68:
1. Expert evidence presented to the court should be and should seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.
2. An expert should provide independent assistance to the court by objective unbiased opinion in relation to matters within his or her expertise. An expert witness should never assume a role of advocate.
3. An expert should state the facts or assumptions on which the opinion is based and should not omit to consider material facts which detract from that opinion.
4. An expert should make it clear when a particular question or issue falls outside of the expert’s expertise.
5. If an expert’s opinion is not properly researched because insufficient date is available, this must be stated with an indication that the opinion is no more than a provisional one.
 I am in respectful agreement with the guidelines put forward in the Ikarian Reefer. As trial judges, we must be wary of advocacy dressed up in the guise of an expert’s report.
If you are involved in an injury lawsuit and are served with an expert report by opposing counsel that you think is not objective the above passage should be kept handy. You can challenge the opposing party’s experts if they contain “advocacy presented in the guise of opinion evidence” and such objections should be raised to keep reports that cross the line out of Court.
Where to begin…
Important reasons for judgement (Burdett v. Mohamed) were released on Friday by the BC Supreme Court, Vancouver Registry addressing a host of topics in the context of BC personal injury litigation.
By way of background the Plaintiff was a passenger in a 2002 motor vehicle accident. She was riding in a vehicle operated by Mr. Mohamed and this vehicle collided with a vehicle operated by a Mr. Samuel.
The Plaintiff suffered various injuries including a traumatic brain injury.
The Defendant Mohamed was charged with Dangerous Driving and was deemed to be in breach of his insurance policy. Accordingly, ICBC, Mr. Mohamed’s insurer defended the claim as a ‘statutory third party.’
There was reason to believe that Mohamed was solely responsible for the collision however the Plaintiff’s lawyer sued both Mohamed and Samuel. The reason being was concern about limited insurance coverage. Mohamed only had $1 million in insurance coverage. The Plaintiff was not the only injured party and when sharing this money with the other claimants the Plaintiff was concerned she would be significantly undercompensated if this was the extent of her recovery.
ICBC made an offer to the various claimants to “get together to divide among themselves the $1,000,000 third party liability (coverage).” This offer was not accepted and the Plaintiff proceeded to trial.
Prior to trial the Plaintiff made a formal offer to settle her claim against Mohamed for $1.5 million. The Defendant Samuel made a formal offer to the Plaintiff to ‘walk away’ on a costs free basis. After a lengthy trial the case against Samuel was dismissed, the Jury found Mohamed responsible for the Plaintiff’s injuries and the Plaintiff 20% contributorily negligent for her own injuries. After this reduction in liability the Plaintiff was awarded over $1.8 million in damages.
The Court was asked to decide, amongst other things, whether the Plaintiff should be awarded double costs against Mohamed, whether Samuel should be awarded double costs against the Plaintiff and whether the Mohamed should pay to Samuel any costs the Plaintiff is exposed to. Rule 37B – Is it reasonable to go to trial for a claim exceeding the Defendants insurance coverage?
The Plaintiff was awarded double costs for beating her formal offer of settlement against Mohamed. In coming to this decision the Court had to grapple with an area of law that is still open to debate, specifically, when considering whether to award double costs can a court consider the insurance coverage available to the parties?
There are cases that go both ways on this topic and the law is not yet set in stone. Usually Plaintiff’s argue that this is a relevant consideration and Defendants argue it is not. Interestingly, here it was ICBC that was arguing the presence of insurance could be “the central factor driving the Court’s analysis under Rule 37B.”. The Defendant submitted that the Plaintiff was unreasonable in going to trial “knowing of the third party liability policy limits“.
Madam Justice Boyd “entirely reject(ed) this submission.” Specifically the Court held as follows:  In my view, having never received an actual offer of settlement from the Third Party, it was reasonable for the plaintiff to choose to proceed to trial in this case. She could expect that she would recover judgment against at least Mohammed and Dubois. The judgment would also likely be in excess of the policy limits. While the quantum of the judgment actually recovered would not exceed her pro rata share of the insurance funds (the calculation of which depended on settlements reached or judgments obtained by Maxwell and Sahota), she would still be left with the ability for the next ten years to pursue execution on the judgment against Mohammed and Dubois. While the Third Party apparently insists that any such judgment will be dry, there is simply no evidence one way or another to confirm that likelihood. It should also be noted that had the insurance monies been paid into court, and had the three claimants reached some agreement as to an appropriate division of the funds, the Third Party could not have enforced any requirement for a release of her claim against either Mohammed or Dubois. Can a “Walk Away” offer trigger Double Costs under Rule 37B?
A ‘walk away’ offer is one where a Defendant, confident of winning at trial, offers that if the Plaintiff discontinues the lawsuit pre-trial that the Defendant will waive their entitlement to costs. The Defendant Samuel made exactly such an offer to the Plaintiff. The Plaintiff rejected this offer and went to trial. The Plaintiff indeed was unsuccessful against Samuel. Samuel asked for an order of Double Costs for beating their formal offer.
Madam Justice Boyd sided with the Defendants and granted the order for double costs. The Court held that while not automatic, a walk away order is capable of triggering double costs and here it was appropriate to do so. Specifically the court held as follows:  My own impression is that faced with the grim realities of the other defendants’ limited insurance coverage, the plaintiff made a calculated decision to pursue a claim of very doubtful merit against Samuel, realizing that she would realize a substantial benefit even if Samuel’s liability was limited to a small percentage. But for the insurance situation, I am confident that the Samuel offer would have been accepted early on by the plaintiff. ..
 As Hinkson J. noted in Bailey v. Jang, 2008 BCSC 1372, the underlying purpose of the offer to settle provisions survived the repeal of Rule 37 and the implementation of Rule 37B. That purpose is to encourage conduct which reduces both the duration and the cost of litigation, while also discouraging the conduct which has the opposite effect.
 I conclude that all of these factors weigh in favour of the defendant Samuel recovering double costs.
The Sanderson Issue:
When a Plaintiff sues 2 parties and succeeds only against one (which was the case here) the Court has a discretion under Rule 57(18) to order that the unsuccessful defendant pay the successful defendants costs. This is called a “Sanderson Order”.
Here the Plaintiff, not wanting to have the ‘double costs’ order eat into into the limited $1,000,000 of insurance coverage applied for a Sanderson Order. Madam Justice Boyd granted the order and required Mohamed to pay Samuel’s court costs. Vital in this decision was the fact that ICBC, in their Third Party Statement of Defence, alleged that Samuel was negligent in causing the collision.
In reaching this decision the Court held as follows:
 This raises the issue, was it reasonable for the plaintiff to have sued and continued her action against the defendant Samuel? I accept that at the outset, given the evidence of the eyewitness to the effect the Dubois vehicle (driven by Mohammed) had fishtailed back and forth across the road before its collision with the oncoming Samuel vehicle, it was reasonable for the plaintiff to have joined Samuel as a defendant to the action. However, after the receipt of the many engineering reports which overwhelmingly laid the blame on Mohammed and absolved Samuel of any negligence, was it reasonable for the plaintiff to have continued her action against Samuel? …
 In my view, faced with ICBC’s plea that Samuel caused or contributed to this accident, the plaintiff had no choice but to continue her claim against Samuel.
 In all of these circumstances, I exercise my discretion under Rule 57(18) and find that a Sanderson order is appropriate in the case at bar, thus requiring the defendants Mohammed and Dubois to pay the costs which the plaintiff would otherwise pay to the successful defendant Samuel.
The lesson to be learned here is that if a Defendant is going to allege that another party is responsible for a car crash they should do so with caution. The Plaintiff is free to bring them into the lawsuit and if the claims are not successful ultimately it is the Defendant who may be on the hook for the extra court costs.
Not Done Yet…
One last point. A companion set of reasons was also released in this case on Friday addressing tax gross ups and management fees. You can find that decision here.
If you would like further information or require assistance, please get in touch.
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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