Cockburn v. Ferrill, 2024 BCSC 41

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Cockburn v. Ferrill, 2024 BCSC 41 Date: 20240111 Docket: M181094 Registry: New Westminster Between: George Arida Cockburn Plaintiff And: Barry Ferrill and Brent Johnson Defendants - and - Docket: M186952 Registry: New Westminster Between: George Arida Cockburn Plaintiff And: Trevor Kelly Morrison Defendant Before: The Honourable Justice Verhoeven Reasons for Judgment re Costs Counsel for the Plaintiff: E.J. McNeney, K.C. R. McNeney Counsel for the Defendant Morrison: S. Hicks Counsel for the Defendants Ferrill and Johnson: R.C. Brun, K.C. N.

Aram Place and Date of Hearing: New Westminster, B.C. November 24, 2023 Place and Date of Judgment: New Westminster, B.C. January 11, 2024 I. Introduction [ 1 ] These reasons for judgment address costs applications following a 20 day jury trial in these two actions. [ 2 ] The plaintiff claimed damages for injuries sustained in two motor vehicle accidents, which gave rise to the two actions: 1. MVA #1, Cockburn v. Ferrill and Johnson , accident of June 10, 2015; and 2. MVA #2, Cockburn v. Morrison , accident of November 19, 2016. [ 3 ] The defendant Ferrill was the driver of the vehicle in MVA #1.

The defendant Johnson was the owner of the vehicle. They are jointly liable. The jury was instructed not to distinguish between them in relation to their liability. [ 4 ] The two actions were tried together. On July 1, 2023, the jury returned with verdicts as follows:

A. MVA #1 1. fault for the collision was apportioned 50% to the plaintiff and 50% to the defendant Ferrill; and 2. before apportionment, and reduction of the non-pecuniary damages in order to conform to the cap, the plaintiff recovered judgment against the defendants as follows: i. non-pecuniary damages – $460,000; ii. past loss of income – $489,000; iii. future loss of earning capacity – $1,263,000; a. Minus special contingency – $63,000 b. Net – $1,200,000 iv. cost of future care – $41,000 v. special damages – $1,200.10. Total: $2,192,400.21. B. MVA #2 [ 5 ] The action against Morrison was dismissed.

The jury found that Morrison was not at fault. No bill of costs has been presented by Morrison for MVA #2. [ 6 ] After receiving the jury’s verdict, I reduced the non-pecuniary award to $448,000 in order to conform to the cap. After apportionment, the award totalled $1,090,200.11. Pre-judgment interest on past loss of earnings and special damages has been calculated in the amount of $13,284.

Total damages including pre-judgment interest is the sum of $1,103,484.10. [ 7 ] The plaintiff has presented a bill of costs in relation to MVA #1, as party and party costs on Scale B, claiming $53,160.80 for tariff items and taxes, and $173,975.84 for disbursements and taxes. The total of the plaintiff's costs claim is therefore $227,136.64. II.

Issues [ 8 ] The costs issues are as follows: 1. in relation to MVA #1, is the plaintiff entitled to 50% of his costs and disbursements, or 100%, or something in between? 2. should the plaintiff recover double costs in relation to MVA #1, on the basis of an offer to settle made March 26, 2019, in relation to both actions, in the amount of $1 million? 3. in relation to MVA #2, should Morrison recover costs against the plaintiff? 4. if Morrison is entitled to costs, should his costs be paid by the MVA #1 defendants, by way of a Bullock or Sanderson order? III. Analysis A.

In relation to MVA #1, is the plaintiff entitled to 50% of his costs and disbursements, or 100%, or something in between? [ 9 ] The MVA #1 defendants concede that the plaintiff achieved partial success and should be awarded costs against them. They argue that the plaintiff is entitled to 50% of his costs and disbursements. They rely on s. 3(1) of the Negligence Act , R.S.B.C. 1996, c. 333 [ Negligence Act ], which provides as follows: 3

(1) Unless the court otherwise directs, the liability for costs of the parties to every action is in the same proportion as their respective liability to make good the damage or loss. [ 10 ] As the statute states, the court retains an overriding discretion to make a different award of costs. In particular, the court may award a plaintiff more than his proportionate share of costs. The principal issue is whether an injustice will result if the default rule set out in s. 3(1) is applied. In Sarkari v.

Carew , 2019 BCSC 137 , Justice Riley stated: [3] … This rule applies, “[u]nless the court orders otherwise”, although there is no requirement to show “exceptional circumstances”: Ekman v. Cook , 2015 BCSC 1863 at para. 27 . The Court thus has the discretion to award costs in some other manner where “injustice will result if the usual rule is followed”: Ekman at para. 8 , citing Forsyth v. Sikorsky Aircraft Corp. , 2002 BCCA 231 at para. 41 ; Wong-Lai v. Ong , 2012 BCSC 1569 .

[11] In Moore v. Dhillon, [1993] 85 B.C.L.R (2nd) 69 (C.A.), , Taylor J.A. explained how the application of s. 3(1)might result in an injustice, in cases where division of fault is as between a successful personal injury plaintiff and the defendant who hassuffered no injury or damage, or who has already been fully compensated for any injury or damage: at para. 13. [12] In Moses v. Kim, 2007 BCSC 1820 [Moses BCSC], Justice Gray stated: [13] The authorities demonstrate many factors the court has considered in exercising this discretion. Among them are the following: (

a) the seriousness of the plaintiff's injuries; (

b) the difficulties facing the plaintiff in establishing liability; (

c) the fact that in settlement negotiations the amount offered was substantially below the ultimate amount; (

d) whether the plaintiff was forced to go to trial to obtain recovery; (

e) the costs of getting to trial; (

f) the difficulty and length of the trial; (

g) whether the costs recovery available to the plaintiff, if costs are apportioned according to liability, will bear any reasonablerelationship to the party's costs in obtaining the results achieved; (

h) the positions taken by the parties at trial, in particular whether the positions taken were appropriate and reasonable in thecircumstances; (

i) whether the defendants made any settlement offers; (

j) the ultimate result of the trial; and (

k) whether the plaintiff achieved substantial success that would be effectively defeated if costs were awarded pursuant to s. 3(1) of theNegligence Act. See Forsyth, supra [Forsyth v. Sikorsky Aircraft Corp. 2002 BCCA 231], and Logeman v. Rossa, [2006] B.C.J. No. 963 (QL), 2006BCSC 692. [13] In Moses BCSC, the plaintiff was seriously injured as a pedestrian when he was walking across a highway and he was struck bya car driven by the defendant, Kim. Justice Gray assessed his damages at $623,000. He was held 65% responsible for the accident.

Hesought 100% of his taxable costs notwithstanding the division of liability. Justice Gray held that an injustice would result if the if s. 3(1)were applied. The trial lasted nine days, with about one and one-half days relating to liability. The court held that bearing in mind the dayand a half spent on liability at trial, and the allocation of 65% of liability to the plaintiff, the plaintiff was entitled to 90% of his costs. [14] The Court of Appeal (Moses v.

Kim, 2009 BCCA 82) held that Gray J. erred in considering the amount of the plaintiff's legal feesas a relevant factor in departing from the usual rule set out in s. 3(1). The court noted that the difficult financial circumstances of theplaintiff was not a factor that should properly be taken into account. The court did not disagree with the list of factors Gray J. providedregarding factors that the courts have considered in determining whether an injustice would result if s. 3(1) were applied.

The Court ofAppeal varied Gray J.’s decision, and ordered that the plaintiff recover 75% of his costs, rather than 90%. [15] In Cornish v. Khunkhun, 2015 BCSC 832, the court observed that the considerations set out in Moses BCSC are not a closed list.Ultimately, the central issue for the court is whether it would be unjust to apportion costs in accordance with s. 3(1).

It is open to thecourt to consider any relevant factors that might inform the determination of what is just in the circumstances. [16] In their submissions, the parties have not attempted to estimate the proportion of trial time taken up by liability and damagesissues in relation to MVA #1 or as between the two actions. [17] The major issues at trial related to MVA #1. Liability and damages issues in relation to MVA#1 both took up substantial amountsof trial time. The MVA #2 action absorbed a very small proportion of the overall time at trial. 1. MVA #1 – Cockburn v.

Ferrill and Johnson [18] MVA #1 occurred June 10, 2015, at about 11:50 a.m. The plaintiff was operating his 2003 Suzuki GSX-R motorcycle, drivingnorthbound on 160th Street in Surrey, when the defendant driver, Barry Ferrill, driving south on 160th Street in a 1998 Volkswagen Golf,made a left turn across the path of the Cockburn motorcycle, in order to turn into the Breakaway Bays residential retirement community,where he resided. [19] Mr. Cockburn was seriously injured in the accident. He sustained a severe brain injury and multiple severe orthopedic injuries.This was never in doubt at the trial.

The trial was hard-fought on the issues of liability and damages, however. [20] Both sides argued that the accident was caused solely by the fault of the other party. [21] The evidence at trial established that the plaintiff was travelling at high rate of speed, well in excess of the posted speed limit of50 km/h, when the collision occurred. The defence relied on three engineers’ estimates of the plaintiff’s speed prior to braking, rangingfrom 81 km/h to 148 km/h. The defence contended that the lower estimates should be discounted.

The defence also argued to the jurythat the plaintiff admitted he was momentarily distracted just prior to the collision, and that he had consumed some quantities of alcohol

and marihuana just prior to the MVA. [ 22 ] The defendant Ferrill was deceased by the time of the trial. The defence successfully applied to adduce evidence from the defendant Ferrill by relying on his police statement made shortly after the accident, and on his examination for discovery evidence. [ 23 ] The defence contested the question of the location of the impact. The defence relied on the examination for discovery evidence of Mr. Ferrill. On his examination for discovery, he said he believed that he was stopped and stationary when the impact occurred.

He said the point of impact between his car and the motorcycle was in the southbound lane of 160 th Street, rather than in the plaintiff’s northbound lane of travel. However, this position was against the weight of the engineering and other evidence, including that of the plaintiff, and I infer from the jury’s decision that it did not accept it. [ 24 ] The defendants argued that, on the engineering evidence, if the plaintiff had been proceeding at a lower rate of speed, the accident could have been entirely avoided.

The argument raised a concern that the jury could engage in “last clear chance” reasoning, contrary to s. 8 of the Negligence Act . A special instruction to the jury was required to negate such reasoning. [ 25 ] The plaintiff argued that notwithstanding his own rate of speed, Ferrill failed to meet the standard of care applicable. He argued that, as the operator of the through vehicle, he had the right-of-way under the Motor Vehicle Act , R.S.B.C. 1996, c. 318 , because Mr.

Ferrill ought to have seen him and appreciated that he was so close as to constitute an immediate hazard, when he made his left hand turn into the path of his motorcycle. [ 26 ] The plaintiff's damages claims were also hotly contested at trial. The plaintiff argued that he had been a successful cement finishing contractor prior to the accident. There was a great deal of evidence at trial concerning his pre-and post-accident business, Coden Concrete Services Limited, including detailed examination of its pre-and post-accident financial statements and performance.

The plaintiff argued that his efforts to continue with his business and his occupation post-accident were unsuccessful, and that he was unemployable. The defendants contended that the plaintiff had a residual income earning capacity. [ 27 ] Numerous expert medical opinion witnesses testified at trial. Both sides called expert evidence from accounting and economic experts. The plaintiff presented evidence as to the costs of future care from an occupational therapist, supplemented with accounting and economic evidence.

Several rulings were required regarding admissibility of evidence sought to be introduced by the defendants. [ 28 ] The defence argued that, pre-accident, the plaintiff had pre-existing psychological conditions including an anti-social personality disorder, attention deficit hyperactivity disorder (ADHD), marihuana use disorder, stimulant use disorder (cocaine use), and pre-existing soft tissue physical injuries. At trial, a strong attack was made on his credibility as a witness. [ 29 ] Late in the trial, the defendants abandoned reliance upon an expert report of Dr.

Ivarsson to the effect that the plaintiff's motorcycle helmet was a “novelty helmet”, which provided inadequate protection in the event of a collision.

However the defence successfully argued that evidence about the unapproved nature of the helmet, as well as allegedly sexist and offensive stickers on it should be considered by the jury in relation to the assessment of the plaintiff’s damages, as evidence of the plaintiff’s pre-accident personality and psychological condition. [ 30 ] The defence argued for a specific contingency reduction in relation to the plaintiff’s claims for future loss of earning capacity, based upon contentions about the pre-accident risk-taking personality and condition. The defence relied upon the opinions of a psychiatrist, Dr.

Smith, regarding pre-accident anti-social personality disorder, ADHD, and substance use disorder. This argument necessitated a detailed examination of the plaintiff's personal history, including a number of otherwise unrelated circumstances in his life. [ 31 ] The defence argued for a special contingency reduction of 25% of the plaintiff’s damages for future loss of earning capacity.

The jury applied a 4% reduction ($63,000) in the plaintiff's damages for future loss of earning capacity on this ground. [ 32 ] The defence position at trial raised risks that the jury would misuse the evidence of the plaintiff's pre-accident personality and condition, either to infer that he was generally a risk-taking reckless individual, more likely to have been negligent in relation to the accidents, or to conclude that the plaintiff was a bad person, therefore less worthy of belief, or that he should be punished for being the sort of person that he was, and less deserving of a fair and reasonable award of damages.

Specific jury instructions were required to direct the jury to not engage in such prejudicial reasoning. 2. MVA #2 – Cockburn v. Morrison [ 33 ] MVA #2 occurred November 19, 2016, some 17 months after MVA #1. The plaintiff was operating a pickup truck on a forest service road near Merritt, in snowy conditions. As he rounded a turn, his vehicle collided head-on with a pickup truck owned and driven by the defendant, Trevor Morrison. [ 34 ] There was no engineering evidence about the accident. The evidence of the plaintiff and the defence witnesses radically differed. The plaintiff testified about the accident. Mr.

Morrison and his passenger Mr. McNeil gave evidence. As noted, the jury decided that the plaintiff had not established a breach of the standard of care on the part of Morrison. [ 35 ] The medical evidence at trial was consistent, in indicating that the plaintiff had suffered only a minor and temporary exacerbation of his MVA #1 injuries in MVA #2. [ 36 ] An issue at trial was whether the plaintiff's claims of injury resulting from MVA #2 were divisible or indivisible with the injuries he sustained in MVA #1.

Prior to counsel’s closing addresses, the plaintiff conceded that on the evidence the plaintiff's injuries were divisible. Therefore, the plaintiff's claims were presented to the jury on that basis. 3. The pre-trial positions of the parties

[ 37 ] The plaintiff made an offer to settle March 26, 2019 (more than four years prior to trial) in the amount of $1 million. The offer was for settlement of both actions, without any breakdown or apportionment as between the actions. The offer to settle noted that the sum of $1 million was determined by the entirety of the policy limits of the MVA #1 defendants. The offer did not otherwise offer a rationale for the amount of the offer. [ 38 ] The MVA #1 defendants issued a jury notice February 1, 2022. [ 39 ] On February 8, 2023 the MVA #1 defendants offered to settle the plaintiff's tort and

Part 7 actions relating to MVA #1 in return for a waiver of costs. The offer expired approximately one month after it was made, on March 13, 2023. [ 40 ] On March 22, 2023, counsel for the MVA #1 defendants, Mr. Brun, made an offer to settle both actions for the sum of $100,000, plus taxable costs and disbursements. [ 41 ] Defence counsel's letter contended that fault would be found to lie entirely with the plaintiff, and that Mr. Ferrill would be found blameless.

The letter noted the engineering evidence demonstrating that the plaintiff’s motorcycle was travelling at a very high rate of speed, that the plaintiff's motorcycle helmet was inappropriate, and displayed obscene and racist graphics on it. The defendant took the position that the accident occurred solely due to the “egregious acts of the plaintiff”. Defence counsel conceded that the plaintiff sustained serious injuries in MVA #1, but contended that the plaintiff had serious pre-existing psychological issues. The defence noted that the defendants would be paying the jury fees. 4.

Discussion [ 42 ] In my view, an injustice would result if s. 3(1) were applied. The plaintiff should recover 100% of his costs in relation to MVA #1. [ 43 ] Given the circumstances of the accident, and the plaintiff’s undeniable excessive rate of speed, in particular, there was practically no chance that the jury would not find that he was contributorily negligent, to a substantial degree.

Establishing 50% liability was substantial success on that issue. [ 44 ] In addition to his excessive speed, there was also evidence of his consumption of alcohol and use of marihuana just prior to the accident. [ 45 ] The defence made strenuous efforts to portray the plaintiff as a risk-taking, unsavoury individual, which carried the risk that the jury would improperly find against him on liability. As noted, special instructions were required for the jury in this respect. [ 46 ] Due to his brain injury, perhaps coupled with his pre-existing personality, the plaintiff was a very difficult witness.

In order to succeed at trial, the plaintiff had to overcome this foreseeable difficulty. His memory was poor, as he frequently stated. He had difficulty focussing on the questions. He gave long, rambling answers, both in direct and cross-examination. He frequently used profanities in his testimony, for which he apologized. [ 47 ] Establishing the plaintiff’s damages for loss of past and future earning capacity was also difficult. The plaintiff’s pre- and post- accident business records were problematic, unsurprisingly, given the nature of his business and of the plaintiff himself.

The plaintiff’s poor memory and other difficulties as a witness compounded the problems he faced in proving these damages. Despite the difficulties, the plaintiff succeeded in proving substantial damages in these areas. As to damages, therefore, the plaintiff was substantially successful. [ 48 ] In

summary, it was a very difficult case for the plaintiff, both as to liability and damages. The finding of 50% liability against the defendants together with substantial damages awards can be fairly regarded as a very substantial victory for the plaintiff. [ 49 ] The plaintiff's injuries were undeniably serious. The jury’s award recognizes that it accepted that his injuries were very serious, and that he sustained large losses resulting from his injuries. The jury made substantial awards for loss of earnings.

The jury's award for non-pecuniary loss slightly exceeded the cap. [ 50 ] The plaintiff accurately describes the defence as aggressive, tenacious, and unyielding. I emphasize that this is no way a criticism of defence counsel, but is a reflection of counsel’s instructions. The plaintiff was forced to go through a difficult, lengthy, costly and very risky jury trial in order to obtain recovery.

As the plaintiff's bill of costs for disbursements shows, great expense was required in order to achieve what amounted to an excellent result for the plaintiff. [ 51 ] The plaintiff’s offer to settle in the amount of $1 million was realistic. The defence's offer of $100,000, in respect of both actions, was very low.

This reinforces the point that the plaintiff was forced to go to trial in order to obtain reasonable compensation for his serious injuries. [ 52 ] The defence argues that, given the reckless actions of the plaintiff leading up to the collision, it would not be unjust to apportion costs in accordance with the general rule contained in the Negligence Act . They argue that it would be unjust to award the plaintiff 100% of his costs and disbursements when his negligent acts played such a significant role in causing the collision. I choose to put no weight on this argument.

The plaintiff's contributory negligence is already reflected in the jury's award. It does not affect the equities in relation to costs, in the circumstances of this case. [ 53 ] Apportioning costs pursuant to s. 3(1) would deprive the plaintiff of a substantial portion of his judgment. In my view, in the circumstances of this case, where the plaintiff was substantially successful in a very hard-fought, costly and difficult case, depriving him of any part of his costs necessarily incurred in order to establish his claims would be unjust.

I conclude that the plaintiff should recover 100% of his costs in relation to MVA #1. B. Should the plaintiff recover double costs in relation to MVA #1, on the basis

of the offer to settle made March 26, 2019, in the amount of $1 million? [54] The plaintiff seeks an award of double costs against the MVA #1 defendants pursuant to subrule 9-1(5)(

b) of the Supreme CourtCivil Rules, and the plaintiff's offer to settle in the amount of $1 million made March 26, 2019. [55] Rule 9-1(6) sets out considerations the court may consider in making an order under subrule 9-1(5):

(6) In making an order under subrule (5), the court may consider the following: (

a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was deliveredor served or on any later date; (

b) the relationship between the terms of settlement offered and the final judgment of the court; (

c) the relative financial circumstances of the parties; (

d) any other factor the court considers appropriate. [56] The underlying purpose of the offer to settle rule was set out by the Court of Appeal in Hartshorne v. Hartshorne, 2011 BCCA29: [25] An award of double costs is a punitive measure against a litigant for that party’s failure, in all of the circumstances, to have acceptedan offer to settle that should have been accepted. Litigants are to be reminded that costs rules are in place “to encourage the earlysettlement of disputes by rewarding the party who makes a reasonable settlement offer and penalizing the party who declines to acceptsuch an offer” (A.E. v.

D.W.J., 2009 BCSC 505, 91 B.C.L.R. (4th) 372 at para. 61, citing MacKenzie v. Brooks, 1999 BCCA 623,Skidmore v. Blackmore (1995), (BC CA), 2 B.C.L.R. (3d) 201 (C.A.), Radke v. Parry, 2008 BCSC 1397). In thisregard, Mr. Justice Frankel’s comments in Giles are apposite: [74] The purposes for which costs rules exist must be kept in mind in determining whether appellate intervention is warranted. Inaddition to indemnifying a successful litigant, those purposes have been described as follows by this Court: • “[D]eterring frivolous actions or defences”: Houweling Nurseries Ltd. v.

Fisons Western Corp. (1988), (BC CA), 37B.C.L.R. (2d) 2 at 25 (C.A.), leave ref’d, [1988] 1 S.C.R. ix; • “[T]o encourage conduct that reduces the duration and expense of litigation and to discourage conduct that has the oppositeeffect”: Skidmore v. Blackmore (1995), (BC CA), 2 B.C.L.R. (3d) 201 at para. 28 (C.A.); • “[E]ncouraging litigants to settle whenever possible, thus freeing up judicial resources for other cases: Bedwell v.

McGill, 2008BCCA 526, 86 B.C.L.R. (4th) 343 at para. 33; • “[T]o have a winnowing function in the litigation process” by “requir[ing] litigants to make a careful assessment of the strength orlack thereof of their cases at the commencement and throughout the course of the litigation”, and by “discourag[ing] the continuance ofdoubtful cases or defences”: Catalyst Paper Corporation v. Companhia de Navegação Norsul, 2009 BCCA 16, 88 B.C.L.R. (4th) 17 atpara. 16. [Emphasis added.] [57] In Cottrill v.

Utopia Day Spas and Salons Ltd., 2019 BCCA 26, the court re-iterated that, based upon the wording of the rule, theessential question is whether the party who received the offer unreasonably refused to accept it: at paras. 30–31. [58] In Stuart v. Hugh, 2011 BCSC 575, I stated: [26] The question of whether the offer ought reasonably to have been accepted must be assessed in light of the informationavailable to the plaintiff when the offer was received and later, while it remained open for acceptance, prior to the jury’s verdict: Baileyv. Jang, 2008 BCSC 1372at para. 24, 90 B.C.L.R. (4th) 125, per Hinkson J.

Reasonableness of a decision to decline acceptance of theoffer is to be assessed by considering such factors as the timing of the offer, whether it had some relationship to the claim (as opposed tosimply being a “nuisance offer”), whether it could be easily evaluated, and whether some rationale for the offer was provided; thesefactors are not exhaustive: Hartshorne v. Hartshorne, 2011 BCCA 29at para. 27, [2011] B.C.J. No. 107 (QL) [Hartshorne]. [59] I will consider the R. 9-1(6) factors in turn. (

a) Whether the offer to settle was one that ought reasonably to have been accepted, either on the date thatthe offer to settle was delivered or served or on any later date [60] The plaintiff’s offer to settle was reasonable, at least by the time of trial, at which time all of the medical and other expertevidence was in hand.

The plaintiff’s injuries were clearly very serious, and the offer represented a substantial discount from the damageshe might possibly receive at trial. [61] However, I am unable to conclude that the MVA #1 defendants unreasonably refused to accept the offer, when it was made or atany time thereafter. [62] The plaintiff did not offer any rationale for the amount of the offer, at the time it was made, or thereafter. The amount was sojustified by relation only to the MVA #1 defendants’ insurance policy limit.

[63] The outcome of the case was very difficult to predict. As I explained in relation to the first issue, there were obvious andsubstantial liability issues. The jury's decision to divide liability evenly, and, further to award substantial damages for loss of earningcapacity, constituted a substantial win for the plaintiff. Prior to trial, the defendants could reasonably expect that 50% liability might bethe upper limit of their likely exposure, and that the award of damages for income losses would be moderate.

It would not beunreasonable to believe that the jury would find no liability on the defendant, or a larger proportion of fault against the plaintiff. Thedefence had good reason to question the magnitude of the plaintiff’s business loss claims. [64] The plaintiff’s offer was combined, in that it related to both accidents. This increased the difficulty of assessing itsreasonableness. [65] The plaintiff's offer provided that the plaintiff would also be entitled to costs of both actions, in full. In other words, there was nodiscount for the chance that the plaintiff might not be fully successful in both actions.

The chances of success for the plaintiff in relationto MVA #2 were also dubious. As time went on, and the plaintiff continued to incur disbursement expenses, the offer became less andless attractive. [66] In my view having regard to the purposes of the rule, this factor deserves the most weight, as in most cases. It is not in theplaintiff’s favour. (

b) The relationship between the terms of settlement offered and the final judgment of the court [67] Including interest, the judgment amount is for $1,103,484.10. There is a significant difference (approximately 10%) between theoffer and the result at trial, not including the costs factor in relation to MVA #2. [68] This factor moderately favours the plaintiff. (

c) The relative financial circumstances of the parties [69] As in most cases involving an insured defendant, this factor strongly favours the plaintiff. The evidence at trial shows that theplaintiff is impecunious. The defendant, being insured, had no financial constraints. The plaintiff was required to fund very substantialdisbursements in order to proceed to trial. This factor also favours the plaintiff. (

d) Any other factor the court considers appropriate [70] The plaintiff argues that there are other factors that ought to be considered. The plaintiff points to various matters dealt with attrial. These include: withdrawal of the report of Dr. Ivarsson, regarding the motorcycle helmet; placing before the jury hearsay evidencethat the plaintiff was doing a “wheelie” prior to the accident; potentially leading the jury to understand that the doctrine of last clearchance could apply to the liability issue; adducing potentially prejudicial bad character evidence about the plaintiff, and other matters.

Itis unnecessary that I describe and analyze all of the matters raised by the plaintiff, for purposes of the costs issue. In my view, thesematters, to the extent they have validity, all have been considered by me in relation to the first issue. They are all part of the “hard-fought”, aggressive nature of the defence in this case. They are not considerations that independently affect the double costs decision,which focusses upon the narrower question of the consequences that should flow from the plaintiff’s offer to settle. [71] In

summary, while factors (

b) and (

c) somewhat favour the plaintiff, I place more weight on factor (a), which does not favour theplaintiff. Taking into account all relevant circumstances and considerations, I am not persuaded that an award of double costs iswarranted. C. In relation MVA #2, should Morrison recover costs against the plaintiff? [72] The plaintiff argues that Morrison, the MVA #2 defendant, should not recover costs against the plaintiff, despite the dismissal ofthe action against him. Alternatively, the plaintiff argues that if Mr.

Morrison is entitled to costs, then his costs should be paid by theMVA #1 defendants by way of a Bullock or Sanderson order. [73] In Tisalona v. Easton, 2017 BCCA 272, the court stated: [71] Rule 14-1(9) is in substantially the same terms as the old Rule 57(9). It also grants unqualified discretion to depart from the primafacie rule that the successful litigant should be awarded its costs. [72] This discretion must of course be exercised judicially, not arbitrarily or capriciously.

An error in principle in an order departing fromthe usual rule will justify intervention by this court: Brito (Guardian ad litem of) v. Woolley, 2007 BCCA 1. Subject to such an error, thediscretion is very broad. [73] One factor which the courts have considered in determining whether the discretion to “otherwise order” has been properly exercisedis whether there are reasons connected to the case to depart from the default order. This factor was referenced in the leading judgment ofRitter v. Godfrey, [1927] A.C. 732 at 811-812, discussed by Craig J. in Landry at 412-413.

In Ritter, Viscount Cave explained the scopeof the discretion as to costs exercised by the courts of equity: This discretion, like any other discretion, must of course be exercised judicially, and the judge ought not to exercise it against thesuccessful party except for some reason connected with the case. [74] This limitation of “some reason connected with the case” has been adopted in British Columbia: see A.E. v. D.W.J., 2009 BCSC 505at para. 23, citing Peters v. Davidson (1981), (BC SC), 125 D.L.R. (3d) 753, aff’d (1982), (BC CA),141 D.L.R. (3d) 763 (C.A.).

[ 74 ] The defendants in the two actions were separately represented at trial. [ 75 ] The plaintiff sensibly applied for an order that the two actions be tried at the same time, and for ancillary orders. The order was granted by consent May 30, 2018. [ 76 ] It is apparent that both sets of defendants were insured by ICBC, and counsel in both actions were instructed by ICBC. There was some overlap in representation. I note that the defence offer to settle of $100,000 made March 22, 2023 was sent by counsel in MVA #1, in respect of both actions. [ 77 ] Counsel for the MVA #1 defendants qualified Mr.

Trevor Dinn, an engineering expert, to give evidence about MVA #1, but also sought to have him qualified in relation to a matter relating only to MVA #2. The apparent purpose of this was to allow Mr. Dinn to testify about an accident data retrieval document relevant only to MVA #2, and provided to MVA #2 counsel by ICBC shortly prior to trial. The plaintiff had not received proper notice of the document or the expert evidence about it.

I ruled that the document was inadmissible. [ 78 ] The expert medical evidence showed that MVA #2 resulted in minimal, injuries consisting of temporary exacerbation of the plaintiff’s soft tissue injuries sustained in MVA #1. The plaintiff’s damages claims were limited to the costs of repair to his vehicle in an agreed amount of $12,928.16, and non-pecuniary damages for injuries the plaintiff conceded were minimal. [ 79 ] The time taken at trial in respect of MVA #2 was very limited. Mr. Morrison called two witnesses, relating only to liability: himself, and his friend, Mr. McNeil.

He adduced no independent expert evidence. He relied on the medical evidence adduced by the other parties to demonstrate that the effect of MVA #2 was very limited. [ 80 ] As noted, there is no draft bill of costs for Mr. Morrison. This makes it difficult to assess the practical consequences of this issue. However as he had separate counsel throughout the trial, I can infer that his bill of costs would be considerable, and would substantially diminish the costs that the plaintiff is awarded arising from the MVA #1 action. [ 81 ] In my view, in this case there are good reasons to depart from the usual rule.

Those reasons are as follows: 1. As a practical matter, the plaintiff had good reasons to bring the action in respect of MVA #2, notwithstanding its minor nature. Liability for the type of collision involved in MVA #2 is notoriously difficult to assess. Each case depends on its own particular facts. Had the plaintiff not brought action in relation to MVA #2, he would have been reasonably concerned about issues relating to the assessment of damages for overlapping injuries.

The MVA #1 defendants could have an incentive to contend that the plaintiff’s injuries and the damages related to MVA #2 were not compensable; 2. The plaintiff was not responsible for the decisions of the defendants to have separate representation at trial. The defendants contend that they were required to have separate representation at trial. Counsel for Ferrill and Johnson states that the plaintiff's offer to settle in the amount of the defendants’ insurance policy limits meant that separate counsel were required. Counsel for Mr.

Morrison states that the possibility the jury could determine that injuries were indivisible, resulting in joint liability, meant that separate counsel were required in order to avoid a conflict of interest. I observe that in many cases a single defence counsel represents multiple defendants in cases where two or more MVA actions are tried together, and the injuries are or could be indivisible. In any event, these considerations are not in the plaintiff's control. They relate to the insurance coverage and counsel conflict concerns.

Leaving these issues aside, there was no reason that one counsel could not have represented both sets of defendants at the trial, as is common. In that case it is likely that successful defendants would be awarded one set of costs, only: Wong v. Lee , 2011 BCSC 1087 at para. 15 . 3. As noted, the time involved at trial in relation to MVA #2 was quite limited. The MVA #2 liability issue did not take up much time. Other than that issue, Morrison sought to establish that the plaintiff’s injuries were not indivisible, and that the plaintiff’s damages were limited. The plaintiff ultimately conceded these points.

Morrison's defence counsel had a limited role at trial, accordingly. Morrison relied entirely on expert evidence from experts engaged by the other parties. Morrison did not conduct an examination for discovery of the plaintiff. 4. There is evidence that the interests of the two sets of defendants were aligned. 5. As noted, awarding of costs to Mr. Morrison would have the effect of significantly undercutting the costs result in the plaintiff’s favour in respect of MVA #1.

In all the circumstances of the case, that would be an unfair result. [ 82 ] In the result, there will be no award of costs in favour of the MVA #2 defendant, Mr. Morrison. It is unnecessary to consider whether a Bullock or Sanderson order ought to be made pursuant to R. 14-1(18). IV. Conclusions [ 83 ] The plaintiff will recover 100% of his costs and disbursements in the MVA #1 action. The plaintiff's application for an award of double costs is dismissed. Mr. Morrison is denied costs in relation to the MVA #2. [ 84 ] I view this application as in effect an extension of the trial.

The same result should apply to the cost of this application. That is, the plaintiff is awarded costs of the application as against the MVA #1 defendants. There is no award of costs in favour of Morrison. “Verhoeven J.”