Cooknell v. Quinn, 2013 BCSC 1653

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Cooknell v. Quinn, 2013 BCSC 1653 Date: 20130909 Docket: 10-4756 Registry: Victoria Between: Debra Cooknell Plaintiff And: Jeffrey Quinn and Kenneth Cooknell Defendants Before: Master Bouck (Sitting as Registrar) Reasons for Decision Counsel for the Plaintiff: A. Wrona Counsel for the Defendants: S. Finn Place and Date of Hearing: Victoria, B.C. June 10, July 17, 2013 Place and Date of Decision: Victoria B.C.

September 9, 2013 Introduction [ 1 ] This is an assessment of the plaintiff’s bill of costs following settlement of the action. [ 2 ] Initially, the defendants took issue with several of the tariff items and disbursements claimed. However, most of those objections were withdrawn such that by the conclusion of the hearing, only the following disbursements were subject to assessment: • Ms. Barbara Phillips; • Malcolm & Associates; • Dr. G.

Stimac; and • MRI (privately funded) [ 3 ] The defendants submit that none of these disbursements were necessary or proper for the prosecution of the plaintiff’s personal injury claim. The reasonableness of the charges is also challenged if the disbursements are found to be necessary or proper on this assessment. [ 4 ] All of these above identified individuals have filed affidavits in support of their respective charges. Only Dr.

Malcolm attended the assessment to be cross-examined on his affidavit. [ 5 ] The assessment of these disbursements requires, among other things, a consideration as to whether a disbursement is necessary or proper when incurred before any medical advice is obtained on the question of injury diagnosis and causation. Background Facts [ 6 ] The plaintiff claims to have suffered injuries in a motor vehicle accident which occurred on February 1, 2009. Ms. Cooknell was a passenger in her husband’s vehicle at the time of the accident. [ 7 ] The B.C. Ambulance Service attended the accident scene. Ms.

Cooknell was transported to hospital and there underwent various testing, including a CT scan. [ 8 ] Within a few days of the accident, the plaintiff and her son met with Sean Sweeney, the counsel who had conduct of this action. Mr. Sweeney deposes as follows:

3. Ms. Cooknell retained me a few days after the Accident. When I met her, she was in acute distress. She was unable to sit up unassisted and at times, she rested her head on my desk while I obtained information from her son, Ken Cooknell Jr. From the two of them, I learned that she had memory gaps describing the accident and indicated she hit her head inside the vehicle. Ms. Cooknell looked very impaired and like she wanted to fall asleep. She described having a severe headache, vomiting, dizziness, balance, comprehension, and various physical complaints.

Her son told me that she required assistance for basic tasks. Prior to the Accident, Ms. Cooknell had been working part-time, while also receiving provincial disability. Due to her nausea and dizziness, she could not complete all of my firm’s record authorizations. 4. Ms. Cooknell and I met again a few months later. She attended my office with her son. She appeared very impaired, dazed and confused. She complained of chronic headaches, head tingling, nausea, fatigue, disorientation, impaired hearing, and decreased memory. [ 9 ] Mr. Sweeney’s affidavit does not specifically address when he retained each of Ms.

Phillips and Drs. Malcolm and Stimac. Nor do these individuals specify the date of first contact or retainer in their respective affidavits. There is a telephone message slip suggesting that Malcolm & Associates were retained in May 2009. [ 10 ] It is apparent from Ms. Phillips’ invoice that she was retained almost immediately after the first meeting between the plaintiff and counsel. The invoice is dated February 22, 2009, and charges $1,200 for an initial assessment report. In that report, Ms. Phillips states: This report is intended as an initial assessment of Mrs.

Cooknell’s present physical, functional and cognitive status as well as her present needs with regard to assistive devices, medical equipment and medical/professional services and support services to assist her to recover from injuries sustained in her accident. It will also take into consideration cognitive/emotional changes sustained in this motor vehicle accident and their effect on function. This report is intended as an initial assessment only. It will outline Mrs. Cooknell’s immediate needs for assistive devices, medical equipment, medical/professional services and support services.

It will not reflect her future needs. There will be a cost attached to these recommendations as well as a rationale for their necessity. [ 11 ] Ms. Phillips accompanied Ms. Cooknell to the latter’s first post-accident medical appointment. That appointment was with the plaintiff’s family doctor, Dr. D. Smith, and took place on February 10, 2009. Dr. Smith has been the plaintiff’s family doctor for more than a decade. The evidence does not disclose whether plaintiff’s counsel had any discussions with or received information from Dr. Smith following this examination. [ 12 ] At some point following the accident, Mr.

Sweeney received the ambulance crew report, interviewed the attending paramedic, and obtained statements from the lay witnesses to the accident. [ 13 ] The timing of these events is not specifically addressed in the evidence. The lay witnesses’ statements were not signed until February 2010. [ 14 ] It would appear that the next investigation undertaken at the direction of plaintiff’s counsel was to have the plaintiff attend a neuropsychological assessment with Malcolm & Associates.

The plaintiff first attended for that assessment in July 2009. [ 15 ] By this time, plaintiff’s counsel was able to provide Malcolm & Associates with pre and post-accident medical information, including the following: • pre-mva records for the period of April 15, 2003 to January 12, 2009; • post-mva clinical records for the period of February 9 to May 12, 2009 (two separate sources); • head and cervical spine CT taken on the day of the accident; • various hospital records, including for a period of February 1 and 2, 2009. [ 16 ] According to Dr.

Malcolm’s subsequent report, the hospital emergency room notes record the plaintiff’s complaints of ongoing headaches, nausea, ringing in the ears and memory loss. The emergency room notes record a Glascow Coma Scale score of 15 but “confusion is also noted which appears to contradict this score”. [ 17 ] For reasons unexplained in the evidence, the ambulance crew report was not included in the initial medical records provided to Malcolm & Associates. As will be further explained below, the crew report was delivered subsequent to the July 2009 testing session.

The delivery of this information led to further testing of the plaintiff in September 2009. [ 18 ] The crew report records an “impression” that the plaintiff suffered a “traumatic head injury with seizures”. The handwritten notes appear to state that the plaintiff struck her husband’s head and suffered a lengthy seizure following the collision. [ 19 ] However, other records provided to Dr.

Malcolm (and presumably in the possession of plaintiff’s counsel prior to July 2009) reveal that serious questions were being raised by medical experts concerning the plaintiff’s alleged accident-related complaints and ongoing symptoms. For example, the plaintiff was seen by a neurologist in March 2009 on a referral from her family physician. In his consult report dated March 20, 2009, the neurologist could not find a source for the plaintiff’s headache symptoms. The plaintiff’s “complex history”, including bouts of depression and hysterical paralysis, is noted in the records.

In 2004, a psychiatrist had diagnosed the presence of personality disorder. An otolaryngologist suggested that the plaintiff was malingering with respect to a hearing test conducted one month after the accident. A CT scan performed in May 2009 revealed no abnormalities. [ 20 ] Dr. Malcolm has provided a medical-legal report dated October 23, 2009. Although Dr. Malcolm found some inconsistencies in the plaintiff’s testing results, he was able to opine that “symptoms consistent with a traumatic brain injury have been identified”. Dr.

Malcolm goes on to state: Generally, a brain injury in considered to be moderate in a Glasgow Coma Scale score of 9-12 is noted and if there has been a loss of consciousness of 30 minutes to 6 hours. Therefore, Ms. Cocknell may be considered to have suffered at least a mild traumatic brain injury, with the possibility of the severity level being moderate. and … at least some of the described symptoms are attributable to the motor vehicle accident. [ 21 ] Meanwhile, plaintiff’s counsel directed Ms. Cooknell to obtain an MRI. Mr.

Sweeney deposes that an MRI was “necessary to establish the evidentiary basis of a brain injury”. Mr. Sweeney further deposes that a “positive finding on MRI can provide critical corroboration” of a brain injury. [ 22 ] On June 24, 2010, the MRI was obtained privately at the cost of $875. The evidence does not address any urgency in obtaining this MRI. Dr. Smith suggested the same investigation in his later medical legal report.

The evidence does not say that a publicly funded MRI could not be obtained. [ 23 ] The results of the MRI included a finding that there was “no evidence of acute or remote intracranial trauma”. Other findings were noted with a recommendation that an MRI be undertaken in six months’ time. There is no evidence that such a follow-up was pursued. [ 24 ] Dr. Smith delivered a medical legal report to plaintiff’s counsel on or about July 22, 2010. In his report, Dr.

Smith reviews the plaintiff’s complicated medical history, the post motor vehicle accident symptoms and investigations, and offers the following opinion: … it is very difficult to come to definite conclusions regarding Mrs. Debra Cooknell. Mrs. Cooknell has a long-standing history of headaches. She has a long-standing history of functional disorder usually involving head pain, various body pains usually on the right hand side and episodes of passing out. And further: It is my opinion that Mrs.

Cooknell suffers from long-term depression and anxiety and it is my opinion that her anxiety was worsened by the motor vehicle accident. I have no indication that she suffered an actual severe closed head injury as all investigations to date post accident have been basically normal. I am not a Psychiatrist. It would be my recommendation that Mrs. Cooknell be reviewed by a Psychiatrist to determine once again the extent of the psychiatric involvement in her ongoing complaints and in her initial complaints. Mrs.

Cooknell has not worked for years so I do not feel there has been any impact on her vocational disability. Regarding her general disability, her anxiety has increased to the point where she feels she is unable to leave her house without accompaniment. It is my opinion that the level of her anxiety has been increased since the motor vehicle accident. Her activities of daily living are markedly restricted, partly due to her anxiety and also due to her ongoing complaints of a feeling of inability to concentrate and I do not know why this inability persists, but I do feel this may be functional.

And: … I do not feel that the injuries are significant but are mainly of worsening of anxiety due to the accident. [ 25 ] The notice of civil claim was issued in November 2010. The plaintiff alleges to have suffered various injuries in the accident, including hearing loss, visual disturbance and brain injury. [ 26 ] The action was subsequently set for a five-day trial commencing April 8, 2013. [ 27 ] In February 2011, Dr. Stimac provided his services as a neuroradiologist. Dr. Stimac is a Washington State based physician.

He was retained by plaintiff’s counsel to review various imaging and prepare a medical-legal report on whether that imaging supported a traumatic brain injury. [ 28 ] Dr. Stimac’s report of February 10, 2011, states that: … the radiographic examinations do not permit a diagnosis of traumatic brain injury. The underlying medical and neuropsychiatric presentation and the radiographs suggest alternative causes for her symptoms. [ 29 ] Despite this opinion, plaintiff’s counsel deposes that he would have relied on this report at trial. [ 30 ] Dr.

Stimac gives examples of the time “typically” spent by him in conducting investigations and preparing reports. He did not prepare a “full” report and the total time spent in relation to the matter is set out as 4.9 hours. Dr. Stimac spent 1.7 hours preparing a one- half page report. [ 31 ] The events described above represent only a portion of the medical investigations pursued on the plaintiff’s behalf. However, the charges incurred for these investigations are the most significant of the disbursements claimed in the bill of costs.

The plaintiff’s bill seeks just over $23,000 in fees, disbursements and taxes. [ 32 ] On January 31, 2013, the plaintiff’s claim was settled with the defendants paying $30,000 plus costs to be assessed. Discussion [ 33 ] Collectively, the parties rely on more than one dozen authorities. With respect to the approach to be taken by the registrar on

this particular assessment, the following tests or principles are most applicable: 1. A disbursement will be disallowed if determined to be a result of extravagance, negligence, mistake, excessive caution or zeal, asjudged by the situation at the time when the disbursement was incurred: Van Daele v. Van Daele (1983), (BC CA), 56B.C.L.R. 178 (C.A.) at para. 109; 2. The Supreme Court Civil Rules (the “SCCR”) “have placed new emphasis on the caution against expenses that are extravagant or theresult of excessive caution or zeal ...”: Stapleton v. Charambidis, 2010 BCSC 1642.

The concept of proportionality has always been alivein the costs assessment process: Kern Chevrolet Oldsmobile Ltd. v. Canadian Pacific Ltd. (1986), (BC CA), 7 B.C.L.R.(2d) 170 (C.A.); 3. In cases where factual assumptions must be made before costly expert opinions can be obtained, the disbursement for that opinionmust be premised on a thorough and reasonable attempt to ascertain the assumed facts in order to give efficacy to that report. This isparticularly so if it is sought to charge those costs against the other party on what really amounts to an almost agency of necessity basis:Fung v.

Berkun (1982), (BC SC), 36 B.C.L.R. 352 (S.C.) at para. 8; 4. A “necessary” disbursement is one which is essential to conduct the litigation. A “proper” disbursement is one which is not necessarybut is reasonably incurred for the purpose of the proceeding: MacKenzie v. Darke, 2003 BCSC 138 at para. 18; 5.

When considering whether a disbursement is proper, the correct viewpoint to be adopted by a taxing officer is that of a sensiblesolicitor sitting in his chair and considering what, in light of his then knowledge, is reasonable in the interests of his client: Francis v.Francis and Dickerson, [1955] 3 All E.R. 837 at p. 840. Also, taxing officers ought not to second guess a competent counsel doing acompetent job, solely on the grounds that other counsel might have been more sanguine or less cautious in determining how the jobought to be done: MacKenzie v. Darke at para. 7; 6.

Disbursements incurred based on reasoning that is equivalent to “just in case” or “you never know” will not be found to have beenreasonably incurred, or to put it another way, they will be found to be extravagant or the result of excessive caution or zeal: Phelan v.Newcombe, 2007 BCSC 714; and 7. A disbursement will be disallowed when it appears that its only purpose is to shore up an unsubstantiated claim: Dulay v. Sahl, [1990]B.C.J.

No. 76 (S.C.). [34] The defendants’ submission is that plaintiff’s counsel did not act reasonably by incurring any of the impugned disbursements.There was never any positive medical finding of a brain injury justifying the investigations by Drs. Malcolm and Stimac. Nor was thereany justification whatsoever in proceeding with a privately funded MRI. Furthermore, counsel had no basis to retain Ms. Phillips as therehad yet to be any medical investigation (let alone findings) on the question of causation for the plaintiff’s post-accident complaints.

Allof these disbursements were incurred, say the defendants, as a result of excessive zeal. [35] Counsel for Ms. Cooknell justifies the disbursements on the basis that the plaintiff presented herself subjectively as a brain-injured individual. As such, counsel proceeded to prosecute the claim on the basis that a brain injury was suffered in the accident. [36] It is a fine line to be drawn between “second guessing” competent counsel and determining that counsel acted with excessivezeal or extravagance in incurring the impugned disbursements.

On that question, I do not understand Master Horn’s comments inMacKenzie v. Darke to mean that the registrar must defer to counsel’s judgment on all matters and essentially issue a carte blanche toincur disbursements at the ultimate cost to the defendants. Such an approach goes against all of the well-established authorities andmakes the assessment process meaningless. Master Horn’s comments ought to be considered in their context. The actual retention of anexpert was not in issue in that assessment.

The issue was whether it was necessary or proper to retain a new expert or stay with an expertwho already provided an opinion with the latter choice being more costly at the end of the day. [37] Upon consideration of all of the evidence and with an attempt to sit in that sensible solicitor’s chair, I have concluded that allbut one of the impugned disbursements should be disallowed. I find that it was proper, but not necessary, for the plaintiff to retainMalcolm & Associates. However, the charges claimed for this particular expert will be reduced.

MRI [38] Dealing firstly with the MRI disbursement, the facts of this case are somewhat analogous to those described by then RegistrarBlok in Phelan v. Newcombe. [39] Although Dr. Smith did recommend an MRI in this case (it is not clear exactly when), there is no explanation offered forproceeding to a private clinic when a publicly funded scan was available -- or at least no evidence to suggest that such a process wasunavailable. As the MRI charge is disallowed on this basis, I do not need to consider whether such an investigation was necessary orproper. Ms.

Barbara Phillips [40] In my view, it was premature for plaintiff’s counsel to retain Ms. Phillips’ services within days of the accident and after onlyone meeting with the plaintiff. Plaintiff’s counsel does not address why these services were necessary beyond somewhat genericstatements to that effect. The evidence suggests a cookie cutter approach to the retention of this type of expert without regard to thepeculiar circumstances of this plaintiff. This disbursement is disallowed in its entirety. Dr. G. Stimac [41] Dr.

Stimac’s services are said by the plaintiff to be necessary and proper in “interpreting” various medical images and possiblyrevealing a brain injury.

[42] Plaintiff’s counsel deposes that the plaintiff’s subjective symptoms necessitated this investigation. Whether the report was usedto settle the plaintiff’s claim is irrelevant as that was not the purpose for which this report was commissioned. [43] The medical evidence in the possession of plaintiff’s counsel at the time that Dr. Stimac prepared his report (and thus apparentlyretained) did not support a brain injury claim. [44] As submitted by the defendants, by this time multiple medical professionals in British Columbia had already assessed theplaintiff and reviewed the MRI results.

None of these professionals expressed any ambiguity about the MRI results or suggested even aremote possibility of brain injury. To the contrary, the medical experts overwhelmingly attributed the plaintiff’s symptoms (except foranxiety) to causes other than the accident. The evidence does not address what Dr. Stimac could have opined on, different from theopinions already obtained. [45] Moreover, the plaintiff did not act reasonably in commissioning a report which essentially confirmed the opinions of variousother medical personnel.

As the defendants submit, the report was redundant. [46] In addition to reflecting excessive zeal, I find that this disbursement was an extravagance on the part of the plaintiff and must bedisallowed. Malcolm & Associates [47] The timing and purpose of the investigation by Malcolm & Associates allows me to conclude that this disbursement wasproperly incurred. [48] Dr. Malcolm was extensively cross-examined on both his specific services provided in this matter and the general scope of hisexpertise. [49] With respect to this second issue, the defendants sought to demonstrate that the content of Dr.

Malcolm’s eventual report wentbeyond the opinions that this expert might be allowed to offer at trial: Meghi v. Lee, 2009 BCSC 1542. As such, the report was uselessand no related charges ought to be allowed. [50] The court in Meghi determined that a neuropsychologist is not qualified to diagnose a brain injury and the manner in which itwas incurred: para. 30. Dr. Malcolm can give an opinion on whether test results as evaluated by him are of a nature, kind, or quality seenin people who have been diagnosed as having had organic brain injuries: para. 31.

Of note, the Meghi decision was issued on July 3,2009, thus in advance of any testing or reporting by Malcolm & Associates. [51] This objection does not neatly fall within any of the categories listed in Bell v. Fantini (#2) (1981), (BC SC),32 B.C.L.R. 322, and decisions that have followed. In any event, the objection requires the registrar to undertake a voir dire on theadmissibility of the report as if the action had proceeded to trial. Such an exercise is beyond the scope of the registrar’s function at acosts assessment: Morrisette v. Smith (1990), 39 C.P.C. (2d) 30.

The objection does not address the necessity and propriety of obtaining aneuropsychological opinion in the first instance. [52] Malcolm & Associates was retained within the first six months following the motor vehicle accident. While there was certainlysome medical evidence in the possession of plaintiff’s counsel that cast some doubt on a diagnosis of brain injury, I find that it wasreasonable on the part of plaintiff’s counsel to pursue this type of investigation at this time. [53] Malcolm & Associates put the plaintiff through a series of tests on July 15, 2009.

The testing was stopped before completion asthe psychometrist expressed concern over the validity of the results. Ms. Cooknell was interviewed by Dr. Malcolm either that day or thenext. After considering the outcome of the limited testing and interview, Dr. Malcolm reported to plaintiff’s counsel that Ms. Cooknell’ssymptoms were not consistent with a brain injury. Dr. Malcolm describes the testing results as “dramatically poor”. [54] Subsequent to this verbal report, plaintiff’s counsel forwarded a copy of the ambulance crew report to Malcolm & Associates.Dr.

Malcolm recommended re-testing the plaintiff, primarily on the basis of the Glasgow Coma Score and other post-accident symptomsrecorded in the crew report. In cross-examination, Dr. Malcolm admitted that he had reservations about the plaintiff’s self-report ofinjuries and symptoms. Nevertheless, it is not unusual to re-test an individual in light of new medical information. Moreover, the currentprofessional protocol is to perform such tests on an individual as soon as possible after the alleged injury-inducing event. [55] It was after this second round of testing that Dr.

Malcolm offered the opinion described above. A further round of testing wasrecommended in one year’s time. Apparently, that further testing was not pursued. [56] In cross-examination, Dr. Malcolm described his opinion as “inconclusive” and conceded that only a medical doctor (aneurologist was suggested) could diagnose the existence of an actual brain injury. [57] This is an instance where the registrar ought not to second guess counsel’s judgment. The investigation of the plaintiff’s claimwas in the early stages. Given the plaintiff’s subjective symptoms, a brain injury could not be ruled out.

Whether that injury was a resultof the motor vehicle accident was yet to be determined. However, a neuropsychologist might be able to opine on whether the symptomswere consistent with a brain injury and thus lead to further investigations. To paraphrase Master Horn, in this case it would be wrong todisallow the disbursement simply because other counsel might have obtained an opinion on the brain injury from a neurologist beforepursuing testing by a neuropsychologist. [58] The defendants also make the argument that retaining Dr.

Malcolm’s services was disproportionate to the nature of the claimand the amount of the ultimate settlement. The amount of the settlement would not have been known at the time that Dr. Malcolm wasretained. Thus, it is not appropriate to use that figure to measure the proportionality of the disbursement. [59] The concept of proportionality is relevant when addressing the necessity and propriety of retaining multiple experts in an

apparent “simple” claim. However, at the time that Malcolm & Associates was retained, the simplicity or complexity of the plaintiff’s claim was unknown. [ 60 ] Nevertheless, despite this disbursement being proper, the amount charged by Malcolm & Associates is not reasonable. [ 61 ] The concept of proportionality is relevant in assessing the reasonableness of these charges: Fairchild v. Vancouver Coastal Health Authority, 2011 BCSC 616 at para. 145 .

That is particularly so when the opposing party has no control over the contract for fees and services negotiated between plaintiff’s counsel and Malcolm & Associates. [ 62 ] In this case, I find that the amount claimed for propriety test costs and administration to be unreasonable. Those two amounts ($728. 70, inclusive of taxes) are more properly part of office overhead and ought not to be visited upon the defendants. [ 63 ] The defendants also challenge the time spent by the psychometrists and Dr. Malcolm himself in testing, interviewing and dictating the eventual report.

The records showing the time spent by Malcolm & Associates on this matter were in evidence. While the onus remains on the plaintiff to justify the reasonableness of this charge, the defendants have not provided any contrary evidence demonstrating that the time spent was excessive or unnecessary for this type of testing or practice. Accordingly, these charges will be allowed. Assessment Costs [ 64 ] Unless offers to settle should be considered by the registrar, the plaintiff is entitled to her costs for this assessment-- with the exception of those costs relating to the disallowed disbursements (i.e. the MRI, Dr.

Stimac, Ms. Phillips). [ 65 ] Either party is at liberty to re-set this matter for a continuation if s. 8 of Appendix B is engaged. [ 66 ] The reasonableness of Dr. Malcolm’s charges for his attendance at this hearing can be further assessed but the parties are encouraged to reach an agreement on this amount.

Summary [ 67 ] The charges claimed by the plaintiff with respect to the MRI, Dr. G. Stimac and Ms. Barbara Phillips are disallowed in their entirety. [ 68 ] The charges of Malcolm & Associates are reduced by $728.70. The charges relating to Dr.

Malcolm’s attendance at the assessment are subject to further assessment unless the parties can reach agreement on this item. [ 69 ] As well, a continuation of the assessment may be set down if the parties are unable to reach consensus on the total amount of costs and disbursements awarded to the plaintiff, bearing in mind that a compromise was reached on all other items in dispute without the involvement of the registrar. “C.P. Bouck” Master C. P. Bouck