Expert Selection / Disbursements

Expert selection is of paramount importance. Reviewing the injuries of the Plaintiff and determining which specialty is required to assist counsel and the court with a better understanding of the Plaintiff’s injuries, diagnosis and prognosis is a task for your counsel.

Occasionally, you may be faced with a costs application to determine the recoverability of disbursements on your claim. There are several posts on Case Law Corner about this topic.  Simply use the search box to read further decisions.  Key word search “disbursements”.

Note that on assessment of whether a disbursement is deemed necessary and proper, it must be noted that “the onus of proving liability and quantum in the proceeding rests upon the shoulders of plaintiff’s counsel. Further, to properly advise the plaintiff with respect to the range of possible outcomes for the case and to consider the reasonableness of settlement offers, plaintiff’s counsel is required to determine the extent of the plaintiff’s injuries and to understand the cause of them.” See Turner v. Whittaker, supra, at para. 51.

Let us review a recent decision in which the cost of the expert report was not allowed. The case is referenced as Gill v. McChesney, 2018 BCSC 1378.

The trial decision is referenced as Gill v. McChesney, 2016 BCSC 1416 (CanLii).

This post will focus on the defence arguments that were raised successfully and the Plaintiff arguments against. Ultimately, the Court agreed with the defence arguments and ordered that the cost of the report of the Plaintiff’s expert is disallowed.

Always remember that the Courts are going to consider Rule 1-3 which is enumerated:

Object

1. The object of these Supreme Court Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.

Proportionality

2.  Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

a. the amount involved in the proceeding,

b. the importance of the issues in dispute, and

c. the complexity of the proceeding.

At the hearing of this application, the defence raised the following arguments to support their position that the cost of the subject expert report should not be allowed:

1. the report was not reasonable or necessary;
2. it was not helpful at trial;
3. it was, at best, inaccurate with respect to the 30/30 testing and at worse deliberately misleading; and
4. it was advocacy as found by the trial judge.

Some background information is helpful and I will enumerate them in point form, taken from the trial decision. For further or specific details, please refer to the subject published decision noted above:

• the expert overlooked a test conducted by another expert in 2010 where the Plaintiff scored 30/30 on the MoCA test
• the subject test results were in the possession of the expert, but not referenced
• the expert acted as an advocate to the Plaintiff
• the report of the expert was deemed admissible, but the objection went to the weight of the report and the trial Judge confirmed this did impact the weight of the report in relation to the cognitive testing
• it was deemed by the court that the experts relied on an inaccurate history of whether the Plaintiff suffered a loss of consciousness
• there were inaccurate statements made by the Plaintiff that did not actually relate to actual recollection
• the opinion of the psychiatrist was based on the inaccurate report of a loss of consciousness which the trial Judge deemed was not a fact.
• the Plaintiff had a “patchy memory” of the collision
• the court found the report to contain more argument than opinion.

The Court, while agreed with the Plaintiff that only a Physiatrist could comment on the impact on employment of a mild traumatic brain injury, also considered the rule of proportionality. In this case, the Plaintiff also had opinions from a neurosurgeon, a neurologist and a psychiatrist.

While there was a recommendation that an opinion from a Physiatrist be sought by the Plaintiff’s experts, the Court stated:

“I have to observe that in a case such as this, the need for a neurosurgeon’s assessment in addition to one from a neurologist is, quite frankly, a mystery to me. Viewed from this context, it is perhaps not surprising that the court is often faced with situations where a bill of costs is greater than the award itself.”

The Court referenced Brach v. Letwin, 2015 BCSC 2081, where he declined to award special costs in relation to an expert whose conduct was wanting but did disallow the disbursement.

While this subject case was not entirely similar to Bratch, the Court’s decision was that the disbursement of the Plaintiff’s expert should be disallowed based on the defence points raised in (b), (c) and (d) above.

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