Tag: Travelbea v. Henrie

Fast Track Costs Apply Despite 4 Day Trial

As previously discussed, Rule 15 is applicable to BC Supreme Court injury trials with a quantum of less than $100,000 or to trials that can be completed in three days or less.   This week reasons for judgement were published by the BC Supreme Court, Vernon Registry, addressing what costs flow following a Rule 15 trial which exceeds three days.
In this week’s case (Travelbea v. Henrie) the Plaintiff was injured in a collision.  Following a four day trial which was prosecuted under Rule 15 damages of just over $68,000 and costs were awarded.  The Plaintiff sought costs under the Tarriff and the Defendant argued that the capped costs of Rule 15 should apply.  Mr. Justice Barrow agreed with the Defendant and noted that there is nothing sufficient in a trial exceeding three days to depart from Rule 15 costs.  The court provided the following reasons:
6]             In general, the case was conducted in accordance with the parameters set by Rule 15-1. The plaintiff did not conduct an examination for discovery of the defendant. The defendant’s examination for discovery of the plaintiff was completed within two hours. There were no interlocutory applications by either party. The only substantive exception to the limitations imposed by the fast-track regime is that the trial spanned four days…
[10]         The only aspect of this case to which the plaintiff points by way of special circumstance is that the trial was set for four days and, in fact, took almost four days to be heard. I am not persuaded that the circumstance is sufficient to justify otherwise ordering. First, when the notice of trial was filed indicating that four days would be necessary, the plaintiff was content that the matter should remain in the fast-track regime. That is apparent by virtue of the endorsement on the notice and the fact that no application to the court or request to the defendant was made seeking to remove the case from the regime. Second, although the trial took more than three days, it took only marginally more, less than half a day.
[11]         I acknowledge the plaintiff’s submission that the case may have taken much longer had counsel not dealt with the matter so efficiently and co-operatively. To accede to that submission would be, in effect, to sanction a party for doing that which the Rules are intended to promote, namely, to conduct trials in an expedient and efficient way.
[12]         In the result, I am satisfied that the lump sum costs provided for in Rule 15 ought to be imposed in this case, and I order that the plaintiff is entitled to costs under Rule 15-1(15)(c) in the amount of $11,000.

Non-Pecuniary Assessments for Athletically Active Individuals Discussed


A common focus when assessing non-pecuniary damages deals with looking at recreational activities and how they have been curtailed as a result of physical injuries.  Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, addressing this in the context of lingering soft tissue injuries.
In last week’s case (Travelbea v. Henrie) the Plaintiff was injured in a 2008 collision.   Fault was admitted by the Defendant focussing the case on an assessment of damages.   The court found that the Plaintiff suffered a “mild to moderate soft tissue injury to her neck and upper back“.  Her symptoms remained “painful and limiting” at the time of trial and while there was room for further improvement the Court was satisfied that there would still be “residual pain and limitations“.
Prior to the crash the Plaintiff was very fit regularly training for and participating in endurance events.  The injuries had a “significant effect..(on the Plaintiff’s) reasonably demanding athletic endeavours“.  In assessing non-pecuniary damages at $50,000 Mr. Justice Barrow provided the following reasons addressing this loss:
[36]         From the foregoing I conclude the following. The plaintiff sustained a mild to moderate soft tissue injury to her neck and upper back. Now, some four years after the accident, it remains painful and limiting. I think it more likely than not that if she commits to the focused stretching that Dr. Laidlow recommended she will increase her level of functioning. I think it more likely than not that if she takes the course of medication, whether nortriptyline or Celebrex, that Dr. Travlos recommended, she will experience an even greater improvement in her functionality. She will, however, be left with residual pain and limitations. I think it unlikely she will ever be able to ride a road bicycle for any appreciable period of time. As a result both that training and triathlon racing will remain beyond her ability. She may be able to ride a bicycle that can be operated in a more upright posture. I think it more likely than not that she will be able to swim and run, albeit not at the level or for the distance she did previously. I think it also likely that with this improvement in function she will recover some of her self confidence and some of the depression which seems to have settled over her will lift.
[37]         Ms. Travelbea’s injuries have affected her much more significantly than they would someone whose life did not revolve around the kinds of athletic endeavours she and her husband enjoy. Ms. Travelbea enjoyed training and did it four, five or six days a week. She enjoyed training as much or more than competing. It was in the midst of athletic pursuits that she met her husband. Training was a significant part of their relationship. They trained together and often raced together. It was the focus of much of their social activity. Her ability to train and the level of fitness she was able to sustain as a result was an important aspect of her sense of self worth…
[54]         Taking all of the foregoing into account, and having regard to the non-exhaustive list of factors set out at paragraph 46 in Stapley v. Hejslet, I consider that an award of $50,000 is appropriate in this case. Included in this amount is $3,000 which I have determined is the appropriate compensation for the plaintiff’s lost capacity to perform housekeeping tasks.

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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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