Practice — Costs — Party and party costs — Disbursements — Expenses for photographers — Travel expenses — Cost of reports — Interest charges — Taxation of.

   This was an application to assess a bill of costs.  The plaintiff was injured in a motor vehicle accident.  The defendant agreed to pay the plaintiff $48,000 inclusive of costs but not disbursements. The defendant also agreed to pay disbursements up to a specified date, after assessment or agreement.  The action was dismissed on that basis.  There was a dispute between the parties as to the extent that the plaintiff's ongoing symptoms were the result of the accident or a prior existing medical condition and the extent to which her injuries would prevent her from using sign language for extended periods so to affect her future employment.  The bill of costs claimed disbursements of $13,832.19.

   HELD:  The application was allowed.  An interest charge paid for late payment of an account was disallowed.  There was no explanation to support that amount.  The claim for an administration fee to cover future costs such as faxes or postage was disallowed.  The consent dismissal order only referred to payment up to a specified date.  Also, it was only an estimated item without any substantiation.  The claim for aerial photographs was disallowed.  While the photos were relevant to the severity of the impact and the extent of the injuries, it was excessive. Ground photographs were reasonable and disbursements for basic photography, scene attendance, enlargements and sketches were allowed.  Disbursements incurred for expert reports to challenge the report of defendant's doctor who suggested that the impact was too little to have caused the plaintiff's complaints and questioning the impact of the accident on her ability to work were excessive.  Time spent on the practical consequence of the injury was work that should have been done by counsel.  A full vocational assessment was also excessive.  The disbursement claimed was reduced by $1,525.  The time claimed for the engineer report was excessive given their expertise.  Travel expenses were also reduced as excessive.  In total, $3,445 was taxed off.

Counsel:

       REGISTRAR POWERS:--

BACKGROUND:

 1      The plaintiff was injured in a motor vehicle accident on April 16, 1992 and these proceedings which resulted from that motor vehicle accident were settled on October 26, 1995, by consent.  The defendants agreed to pay to the plaintiff  $48,000.00 inclusive of costs but not disbursements.  The defendants also agreed to pay the plaintiff's disbursements up to and including October 19, 1995, after assessment thereof or agreement thereto.  The proceedings were dismissed on that basis.

 2      The matter had been scheduled for A  five  day judge  and  jury trial to commence on November 6, 1995.

 3      The plaintiff  did  have  a  prior  existing medical  condition and there was a  dispute  between  the parties  as  to  the  extent  to which her ongoing symptoms were a result of the motor vehicle accident or the prior existing condition.  There was also  a  dispute between the parties as to what extent, if any, the motor vehicle accident affected the plaintiff's future employment. The plaintiff had not lost any work but was concerned that as a result of the injuries suffered in the accident she would  not  be  able  to

work  as a sign language interpreter.  The  plaintiff  was able  to  communicate by sign language but was concerned that she  would  not  physically  be able to communicate in  sign language for long or extended  periods of time due to problems with her neck and shoulder which she attributed to the  motor vehicle  accident.  The  defendants  took  the position that the plaintiff had not  been  employed  as  a  professional sign language interpreter,  and  although   she  may  use  sign

language in her employment, she was primarily an administrator.  To the extent to which her  ability  to  use sign  language  was  affected by the accident, if any, it was argued that  it  did  not  deter   from  her ability  to  work as  an  administrator  even  if    it   required   the occasional use of sign language.

 4      The plaintiff's  position  was  that  although she  may  have been  employed as an administrator or in fact as a ministerial administrative assistant for an elected official of the government, her employment was not secure in the event that there was a change in government, and in any event she did not wish to continue to work in an administrative capacity.  This dispute is the basis of some of the dispute between the parties with regard to a portion of the disbursements claimed.

 5      The further amended bill of costs of the plaintiff was filed sometime after November 20, 1995.  The tariff items including P.S.T. and G.S.T. were claimed at $205.20 and related to the assessment of costs.

 6      The disbursements were claimed in a total amount of $13,832.19. To the credit of the parties, they were able to agree on all of the disbursements with the exception of the following:

I will deal with some of these out of order.

 7      Paid Admin. & storage - $50.00 - this is an amount which the plaintiff says there might be some further disbursements to be incurred by the plaintiff after assessment for postage, legal alternative, courier, faxes, photocopies, and retention of the plaintiff's file materials as required by the Law Society of British Columbia.

 8      The consent dismissal order which was drafted by the plaintiff's solicitor only refers to the payment of disbursements up to and including October 19, 1995.  That is reason enough to disallow the claim for this administration fee.  However, beyond that I am not satisfied that anything should be allowed for this item in any event.  This is merely an item which the plaintiff has guessed at or estimated without any substantiation.  In addition the defendant cannot be asked to pay some fee which the plaintiff's solicitor may charge the plaintiff for retaining file materials.  This amount is disallowed.

 9      Paid Pacific Air Photo - $510.00 - the fee statement is marked Exhibit "D" to the affidavit of Mr. Edwards for November 20, 1995. The plaintiff retained Pacific Air Photo to fly over the scene of the accident and take a photograph.  In addition, some ground photographs were  also  taken.  The  purpose of the photographs was said to assist the jury  and  to  deal  with issues raised by a report filed by the defendant from a Dr. Murray Allen.  The plaintiff had proposed  taking  some  issue

with  Dr.  Allen's report that involved the angles of the collision.  The  direction  of  travel of the vehicles was therefore important.

 10      The  aerial  photograph  was  produced  at  the assessment  and was impressive in its clarity.

 11      Liability was not an issue  in  this  case,  but there  was  a dispute  between   the  parties  about  the severity  impact and  the extent of the plaintiff's injuries.

 12      I am unable to agree with the  plaintiff, however,  that  this disbursement was necessarily or properly incurred  in  the  conduct of the proceeding.  I  am satisfied  that  the  ground  photographs were reasonable and that some form  of  a sketch or plan of the  roadway would also be reasonable. However,  the  aerial photograph is excessive.

 13      I  would  allow  the  charge  for  basic photography, $15.00; scene attendance,  $155.00;  something for  photographic enlargements and what otherwise might have been spent preparing a sketch  or  plan of the intersection involved, $100.00; for a total of $270.00. The balance of $240.00 is taxed off.

 14      The balance of the disbursements, being the McInnis Engineering Report, Dr. Chapman's charge, and Healthserv B.C. Inc., are all related essentially to the same subject matter, at least in part.

 15      The plaintiff says that this was a fairly straight forward motor vehicle accident claim until they received a report from the defendant's doctor, Dr. Allen.  Dr. Allen's two reports are marked as Exhibit "C" to Mr. Edwards' affidavit.  The plaintiff says that the thrust of Or.  Allen's reports were that there was very little impact in this collision and therefore the plaintiff's complaints could not be related to the accident itself but must be related to the prior existing injury.  The plaintiff says that they were forced to meet this issue.  The plaintiff says that Dr. Allen's report included medical and engineering analysis about the dynamics of the collision, and medical analysis about the mechanics of the injury.  Dr. Allen's conclusion was that the forces involved in the accident were not sufficient to cause the ongoing complaints that the plaintiff had, especially regarding her shoulder and neck.  He also said that this would not affect her ability to use sign language.

 16      Dr. Allen's report states that, "the emphasis of this report will be to relate the dynamics of the accident to the claims of injury". (P.1) Dr. Allen's qualifications indicate that he is, an expert in the field of injury dynamics". (p. 1) Dr. Allen's second report is signed as Murray Allen, M.C., Consultant Musculo Skeletal Medicine.

 17      Dr. Allen assumed that the plaintiff was involved in a side crash motor vehicle accident of uncertain minor to moderate severity and that she had complaints relating to the right hip and that at uncertain times thereafter complained of neck and low back pain.  He also assumed she had similar symptoms before the accident.  He was ". . . attempting to relate the degree to which the accident in question would or could cause the complaints".  Dr. Allen does discuss the dynamics of the accident.  He admits that there is limited information in which to judge the intensity of the collision but suggests that this was a low velocity impact. (p.4)

 18      Dr. Allen did discuss the plaintiff Is complaints at the time and her suggestion that she had a few minor complaints in the past.  He also reviewed the clinical notes which were available to him from her physiotherapist and massage therapist.  He also reviewed some x-ray reports.  He concluded that she had pre-existing degeneration of the cervical spine.  The clinical notes also indicate that she had been treated prior to the accident for problems with her shoulder and neck and stiffness of the cervical spine.

 19      Dr. Allen concluded that because the plaintiff did not have either immediate complaints or complaints about her neck within about 24 hours of the accident, that it was unlikely that the accident caused much, if any, injury to her neck or spine.

 20      Dr. Allen concluded that the pain that the plaintiff was having with her neck and spine was related to aging, deconditioning, and smoking. (p.10)

 21      Dr. Allen  did  not  think  the  plaintiff  was malingering. (p.11)  He did conclude that the accident did not strain her neck. (p.12)

 22      In his report Dr. Allen did discuss what would be expected by way of complaints and the timing of complaints if an injury had been suffered, and as well discussed the types of forces which would be necessary to cause injury to the neck or spine in a rear end collision or a frontal collision or a side impact collision.

 23      In his second report Dr. Allen was very specific in saying that the plaintiff suffered no injuries in the accident which would affect her ability to perform sign language.          There was no suggestion that she had injured her hands in any way.

 24      Before the receipt of Dr. Allen' s report, the plaintiff had requested a report from Healthserv B.C. Inc. The first report is Exhibit "F" to Mr. Edwards' affidavit.  A follow up letter was Exhibit "G" and a follow up report was Exhibit "I".  These portions of the report were prepared by Dr. Haakonson, an occupational Health Physician.  Exhibit "J" was a further portion of the report from Healthserv.  This was described as an integrated work capacity evaluation and is a portion of the report prepared by Niall Trainor, M.A.A.R.W. Vocational Rehabilitation Consultant.  Mr. Trainor also prepared a further report marked Exhibit "K".

 25      The first account rendered by Healthserv B.C. Inc. is for the sum of $4,485.98. This includes two items for travel expense, $267.50 and $36.00.

 26      Healthserv has offices in Victoria and Vancouver.

There has been no evidence led before me to justify the travel expense.  That expense plus the G.S.T. is deducted.  The total amount deducted for these amounts therefore is:

 27      The balance of the account relates to:

 28      The account dated October 12, 1995 related to the addendum and totalled $993.06, indicates that Dr. Haakonson's hourly rate is $251.00 and Mr. Trainer's hourly rate is $150.00.

 29      No real issue was taken with the hourly rates or even the time spent.

 30      The plaintiff's primary objection to these accounts, that of Dr. Chapman and that of McInnis Engineering, are that they are excessive, especially in light of the issue to which they were addressed which was particularly a claim for loss of potential future income or ability to earn income due to the affects that the accident may have had on the plaintiff's ability to perform American sign language.

 31      Healthserv B.C. Inc. rendered two accounts:

I have already dealt with the portion of the account which covered travel and have taken that off.

The August 24th account relates to the reports of the same date.  There are two reports, one entitled an Occupation Medical Legal Report by Dr. Haakonson, the second entitled Vocation Rehabilitation Assessment by Niall Trainor.

 32      I will deal first with the occupation medical legal report by Dr. Haakonson.  This report consists of approximately 35 pages and appears to follow a standard format used by Healthserv B.C. Inc.  Dr. Haakonson reviewed a number of medical reports and clinical records and comments on them in his report.  He conducted a physical examination of the plaintiff and reviewed test data for testing administered by an occupational health nurse.

 33      Dr. Haakonson reviewed the plaintiff's work history and her  medical history and a personal pain assessment.  Some of this review is the sort of thing which would normally be conducted by counsel.  I am referring to the portion that is entitled Practical Consequences of Injuries. Dr. Haakonson does deal with the plaintiff's concerns about her ability to work as a sign language interpreter.  He gives his opinion that although the plaintiff had some preexisting degenerative spinal disease, the forces in the accident were sufficient to make her condition symptomatic.  He also concludes that the accident caused a flexion extension injury or strain to her spine.  He also refers to her right hip injury.  He concludes that the injuries have caused her some impairment and that she is limited to light physical activities.  He concludes that it is unlikely that she would improve significantly.

 34      Dr. Haakonson deals with the issue of her ability to work as a sign language interpreter at p.30 of his report and concludes that due to the requirement for reaching and holding her arms up to convey sign language, that she would not be able to work as a sign language interpreter.  He concluded it was possible she could improve enough to meet the requirements of a sign language interpreter but did not think it was probable.

 35      Dr. Haakonson's conclusions begin at p.32 and as he states they are the standard questions answered in every Healthserv report.  He finds that her injuries are related to the accident, that the injuries cause her some physical impairment.  He concludes that she is capable of carrying out her present occupation but not returning to the occupation of sign language interpreter.  With treatment she could make some marginal improvements, but it is unlikely she would be able to return to work as a sign language interpreter.  He does conclude that a vocational assessment is needed because of the inability to return to work as a sign language interpreter.

 36      The vocational rehabilitation assessment was carried out by Mr. Trainor.  His report is approximately 14 pages in length.  He as well reviewed the medical reports and clinical records which were available and refers to Dr. Haakonson's diagnosis.

 37      Mr. Trainor reviewed the plaintiff's personal history and her employment history.  He conducted some tests dealing with her vocational interests and conducted a career interest inventory and career exploration inventory.  He also conducted some aptitude tests.

 38      His conclusions, being at p.12 of his report, address the main concern about whether or not she could work using sign language.  He believes she could use sign language on an infrequent basis, for instance less than one-third of her working day and that this might limit, but does not preclude, her ability to work with the deaf community in an executive or managerial role.  He did conclude, though, that she would not be able to work as a counsellor or interpreter of sign language.

 39      Mr. Niall did conclude that the plaintiff did have considerable knowledge and skill related to community development and non-profit management and organizational development in government community relations, group leadership, and advocacy.  He felt that these skill were transferrable to other occupations.  He concludes that but for the accident she could have, if laid off, have found at least part-time work as a interpreter or counsellor to the deaf. This would not be available to her as a result of the accident.  He felt that this work as an interpreter would have assisted her on a part-time basis while she sought other employment or if she loses her present employment due to a change in government.

 40      The defendant argued that these reports, or at least a portion of them, especially in light of the engineering report and the report from Dr. Chapman, were excessive.  The defendant did not argue that there should have been no reports prepared by these experts, but felt that to a large extent the combination of reports was overkill.  The defendant argues that the plaintiff's claim with regard to her employment was really a claim for a lost opportunity to work as a sign interpreter rather than an inability to perform what was her normal work as an administrator.  In light of that, the defendant says these expenses in total are excessive.

 41      I am satisfied that some of the time spent by Dr. Haakonson on the practical consequence of injury is work that should have been done by counsel and I would reduce his account for that portion of the work, which I estimate to be $250.00.

 42      I am also concerned about the need for the full assessment which was conducted by Mr. Niall.  Clearly the plaintiff was a person who was capable of continuing to work in her present occupation and the real issue was whether or not she could ever return to work as a sign language interpreter or counsellor. it was not necessary to do a full vocational assessment.  I am satisfied it was reasonable and necessary for Mr. Niall to conduct some testing of the plaintiff and an assessment of her ability to work as a sign language interpreter and to provide information about what was required for that occupation.  His analysis about how the inability to perform that work might cause some loss to the plaintiff was also useful.  However, I think a large part of his work was unnecessary.  I would reduce his portion of the account by $1,275.00, leaving $600.00. On this particular account, therefore, I have reduced it by $250.00 for Dr. Haakonson's time, and $1,275.00 for Mr. Niall's time, for a total of $1,525.00 plus G.S.T. of $106.75, for a total reduction of $1,631.75.

 43      I will also deal with the October 12, 1995 account now.  Part of this includes Dr. Haakonson confirming some job descriptions and sending that information to plaintiff's counsel.  Four-tenths of an hour included a review of Dr. Allen's report supplied by the defendant, and a letter in response.  The portion of the letter in response dealing with ability to work as a sign language interpreter merely enforces what was contained in the earlier reports and was not really necessary.  However the first portion of the letter deals with addressing the report of Dr. Allen dealing with whether or not the plaintiff could have been injured in this accident giving the forces involved in the accident.  I am satisfied that this was an appropriate response to Dr. Allen's report.  However eight-tenths of an hour for the preparation of that letter seems excessive to me.

 44      I note that Mr. Trainor also charged for a letter of October 4, 1995.  He has charged one hour for this letter. This is additional information requested explaining some portions of his report and some of the statistics he used.  I am satisfied that this was reasonable follow up.

 45      I will allow $700.00 including tax on this account, reducing it by $293.08.

 46      One of the accounts which is disputed is that of Dr. Chapman's.  Dr. Chapman charged 3.3 hours at $150.00 an hour for a total of $500.00 to read Dr. Murray Allen's report and some additional documents.  Dr. Chapman is a kinesiologist.  No written report was obtained although there was some telephone discussions with Dr. Chapman.  The plaintiffs say that they requested assistance from Dr. Chapman to help them refute Dr. Allen's report.  They already had the medical evidence of Dr. Haakonson.

 47      The plaintiff s provided me with a copy of material from the presentation Dr. Chapman made to the Trial Lawyers Association of British Columbia on November 4, 1994. I have read that paper and am satisfied it would be reasonable to discuss the material with Dr. Chapman.  I have read Dr. Allen's report which was reviewed by Dr. Chapman.  It is just over 18 pages long.  Four pages are an appendix of generic issues which I expect Dr. Chapman to be familiar with.  Given Dr. Chapman's expertise, however, I am not satisfied that three hours would be a reasonable amount of time for him to spend reviewing that report and discussing it with counsel.  I would allow one-half that time, reducing the claim by $250.00.

 48      The next item was the McInnis Engineering Associates Ltd. report.  McInnis Engineering rendered an account October 31, 1995 for:

The report is just over five pages in length.  The engineer reviewed Dr. Allen's report, a statement by the plaintiff, accident reports, autobody invoices, medical legal reports, including that of Dr.- Haakonson, and some excerpts from the discovery of Ms. Siddaway.  They also examined two photographs of her car.  The engineer disagreed with Dr. Allen's analysis of the impact severity and concluded that it was inappropriate to draw a conclusion about impact severity when many of the factors could not be determined. (p.3)

 49      The engineer refutes Dr. Allen's suggestion that the severity of the impact alone can be used to determine whether there was potential for injury.  The engineer refers to other studies and suggests that a number of factors affect a person's susceptibility to injury including age, gender, posture at impact, bracing and prior medical conditions.  The engineer also refers to reports which refute Dr. Allen's suggestion about where the threshold for injury is, if in fact such a threshold can be established.   The conclusions are basically a summary of the report.

 50      The engineer's account indicates that:

I do not have problems with these numbers.  The numbers that do give me trouble, however, are the 4.9 hours of analysis and the 5.8 hours for report of findings.  This strikes me as an excessive amount of time given the expertise of the engineers involved.  Much of the information would be known to them. The report is well written and concise.  I would expect it to be from engineers with these qualifications.  I have difficulty, however, accepting that it should have taken this much time to conduct the analysis and prepare the report.  I would reduce the account by $586.00, allowing $1,100.00 plus disbursements of  $15.50 and G.S.T. of $78.09 for a total of $1,193.58. Total taken off including G.S.T., $627.03.

 51      No issue was taken with the tariff items and they are allowed at $205.20.

 52      Of the $13,832.19 for disbursements and tax on disbursements, I have taxed off the following:

       Total taxed off................ $3,445.39

       Balance........................ 13,832.19

REGISTRAR POWERS

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