






Citation:



Rorison
v.
Hutt



Date:
20030110









2003 BCCA 10



Docket:



CA027449









COURT OF APPEAL FOR
BRITISH COLUMBIA









BETWEEN:









ROBERT RORISON









APPELLANT/RESPONDENT BY
  CROSS-APPEAL

(PLAINTIFF)









AND:









SHANE MICHAEL HUTT









RESPONDENT

(DEFENDANT)









AND:









INSURANCE CORPORATION OF BRITISH COLUMBIA











RESPONDENT/APPELLANT BY
  CROSS-APPEAL

(THIRD PARTY)













Before:



The
  Honourable Mr. Justice Esson









The
  Honourable Madam Justice Prowse









The
  Honourable Madam Justice Levine













J.E.
  Mitchell



Counsel for the Appellant





R.B.
  Lindsay and T.E. Bean



Counsel for the
  Respondents





Place
  and Date of Hearing:



Vancouver, British Columbia





December
        9, 2002





Place
  and Date of Judgment:



Vancouver, British Columbia





January
        10, 2003









Written Reasons by:

The
Honourable Madam Justice Prowse



Concurred in by:

The Honourable Mr. Justice Esson

The Honourable Madam Justice Levine


Reasons for Judgment of the Honourable Madam Justice
  Prowse:






[1]


Mr.
    Rorison is appealing from the order of a Supreme Court judge, made on July
    14, 2000 following a jury
    trial.

The jury awarded Mr. Rorison
    $30,000 for non-pecuniary damages and dismissed his claims for past wage loss,
    and loss of future income and income-earning capacity.

These claims arose out of injuries Mr.
    Rorison suffered in a motor vehicle accident on June
    16, 1994.

Liability for the accident was admitted; the only issue before the jury
  was the quantum of damages.


[2]


The
    respondent third party, the Insurance Corporation of British Columbia ("ICBC"),
  is cross-appealing from the trial judge's award of costs.


[3]


I will
  deal first with Mr. Rorison's appeal.


[4]


Counsel
    for Mr. Rorison submits that the verdict of the jury with respect to
    non-pecuniary damages is inordinately low and perverse, and that the balance of
    the verdict, relating to past wage loss and loss of future income and
    income-earning capacity, is perverse.

In
    support of her submissions, counsel referred to various extracts from the
    evidence which, in her view, supported a finding that Mr. Rorison was seriously
    injured in the accident and that he suffered both a past loss of income and a
    reduced capacity to earn income in the future.



[5]


Counsel
    for ICBC, in turn, referred the Court to other extracts from the evidence
    which, in his view, supported the verdict of the jury.

In particular, he referred to evidence
    indicating that there was a significant dispute as to whether Mr. Rorison's
    ongoing complaints were causally related to the accident, and to further
    evidence indicating that Mr. Rorison's credibility was in issue, both with
    respect to the extent of the injuries he suffered in the accident, and with
  respect to his income and his income-earning capacity.



[6]


I begin by
    observing that it is not the function of this Court to retry cases, or to
    substitute its view of the evidence for that of the jury, particularly where
    credibility is a significant issue, as here.

Rather, the standard of review to be applied by this Court in reviewing
    the verdict of a jury is set forth in
Cory v. Marsh
(1993), 77 B.C.L.R.
    (2d) 248 (C.A.).

There, Chief Justice
    McEachern, speaking for the majority, referred with approval to
McCannell
    v. McLean
, [1937] S.C.R. 341, where Chief Justice Duff stated "that
    an appellate court ought not to interfere with a jury verdict unless it is
    '... so plainly unreasonable and unjust as to satisfy the Court that no
    jury reviewing the evidence as a whole and acting judicially could have reached
    it.'"

Chief Justice McEachern also
    referred to the oft-cited decision of
Nance v. British Columbia Electric Railway
    Company
, [1951] A.C. 601, where Viscount Simon stated that the
    assessment of damages by a trial judge ought not to be interfered with by
    an appellate court unless the court is: "... satisfied either that the
    judge ... applied a wrong principle of law ... or, short of this, that the
    amount
    awarded is either so inordinately low or so inordinately high that it must
    be a wholly
    erroneous estimate of the damage."

Although the standard of review set forth in
Nance
was in relation to
    the award of a trial judge, it has also been adopted as the standard of review
  in relation to jury awards.



[7]



This case occupied 17 days of trial at which
    41 witnesses were called.

It is apparent
    that there was no consensus amongst the various expert witnesses as to whether
    all of Mr. Rorison's injuries and symptoms were causally connected to the
    accident.

As earlier mentioned, it is
  also apparent that Mr. Rorison's credibility was in issue.



[8]


In my
    view, it is reasonable to infer from the jury verdict that the jury preferred
    the evidence called on behalf of ICBC to that called on behalf of Mr.
    Rorison.

It was open to them to do
    so.

This was also the view of the trial
    judge, who dismissed Mr. Rorison's application to set aside the jury verdict.

In so doing, the trial judge stated (at para.
  1):


I have listened intently to submissions by counsel, and I am
    satisfied after reviewing the law, that although I do not agree with the jury
    verdict, I cannot hold that the verdict should be upset in any way, shape, or
    form or a new trial ordered.

While I
    do not agree with the decision of the jury, it is a decision that they could
    plainly make, and they made it.

The
  application to set aside the jury verdict is dismissed.



[Emphasis added.]








[9]


Given the
    conflict in the evidence with respect to causation, and the fact that Mr.
    Rorison's credibility was a live issue which impacted on all heads of damage, I
    am not persuaded that any aspect of the jury verdict was perverse, or that the
    amount awarded for non-pecuniary damages was inordinately low.

Rather, I am satisfied that there was evidence
    to support the verdict and that there is no basis upon which this Court should
  interfere with it.


[10]


I would, therefore, dismiss the appeal.


[11]


I now turn to the cross-appeal on costs.


[12]


The trial judge's order with respect to costs
  was made July 14, 2000, following the submissions of counsel.

He ordered that:

(a)

Mr. Rorison receive his costs to the
  commencement of trial;



(b)

Mr. Rorison receive one-half of his trial
  costs from ICBC; and



(c)

ICBC receive one-half of its trial costs from
  Mr. Rorison.








[13]


In its notice of motion seeking costs at trial,
    ICBC sought its full costs of the trial pursuant to Rule 37 of the
Rules
    of Court
(B.C. Reg. 221/90) based on an offer to settle it had made
    to Mr. Rorison on May 23, 2000 (six days before the trial began).

In the alternative, ICBC sought an order
    pursuant to Rule 57 of the
Rules of Court
that Mr. Rorison be
    deprived of his costs and disbursements relating to his claims for past and
    future wage loss, and that ICBC be granted its full costs of the action relating
    to those issues, on the basis that ICBC had been fully successful on those
    issues which had consumed a substantial portion of the trial.

It does not appear from its notice of motion
    that ICBC sought to combine its request for relief under Rules 37 and 57 as it
  has done in its request for relief on appeal.


[14]


In my view, ICBC is not entitled to seek
    greater relief on appeal with respect to costs than it sought in the first
    instance before the trial judge.

For
    that reason, I propose to analyze ICBC's claim for costs on the basis of Rule
  37, which was the first alternative posed to the trial judge.



[15]


Rule 37 provides, in part:

(2)

A party to a proceeding may deliver to any
    other party of record a written offer in Form 64 to settle one or more of the
  claims in the proceeding in the terms specified in the offer.



...



(6)

An offer to settle may be delivered at any
  time before the trial commences.



(7)

If an offer is delivered less than 7 days
    before the trial commences, subrules (23) to (29) do not apply but the court
    may, in exercising its discretion as to costs, consider the offer and the date
  that it was delivered.



...





(13)

An offer to settle which has not been withdrawn
  may be accepted at any time
before the trial commences.



...



(24)

If the defendant has made an offer to settle
    a claim for money and the offer has not expired or been withdrawn or been
  accepted,



(a)

if the plaintiff obtains
    judgment for the amount of money specified in the offer or a lesser amount, the
    plaintiff is entitled to costs assessed to the date the offer was delivered and
  the defendant is entitled to costs assessed from that date,
or



(b)

if the plaintiff's claim is
    dismissed, the defendant is entitled to costs assessed to the date the offer
  was delivered and to double costs assessed from that date.



[Emphasis added.]








[16]


In this case, ICBC faxed an offer to settle Mr.
    Rorison's claim to counsel for Mr. Rorison at 10:30
    a.m. on Tuesday,
    May 23, 2000 (the day following Victoria Day).

The trial was set to start the following
    Monday, May 29.

This left Mr. Rorison
  six days to consider the offer.



[17]


The offer to settle was for $62,500 plus costs
    and disbursements.

The offer was not
    accepted.

Had the offer been delivered
    one day earlier, ICBC would have been entitled, under Rule 37(24
)(
a), to its costs from the date the offer was delivered,
    including its full costs of trial.

Because the offer was delivered within seven days of the hearing of the
    trial, however, the trial judge was entitled to exercise his discretion as to
  the amount of costs awarded, in accordance with Rule 37(7).


[18]


In concluding that the costs should be awarded
    as set out at para. 12
,
the trial
  judge stated (at paras. 2-6):

It is clear that it was ICBC, the third party, who decided to take a
    jury notice in this matter.

It seems,
    and I think I could take judicial notice of the fact, that this is a tactic and
    a ploy used by ICBC for most of these trials because it has been found to be
  very successful for them.


Juries are not very sympathetic for these
type
of accidents.

And in a case like this, a
    simple thing like failing to declare income on income tax returns could perhaps
    have caused the jury to have an adverse reaction to a plaintiff.

I have no way of knowing what went through the
  jury's mind.




In this particular case, various offers were made to settle, and
    then subsequently withdrawn.

The
    final offer to settle was made within a few days of trial, less than seven days
    before the trial began and that included a weekend in between.

Counsel for the plaintiff tells me that they
    did not have a proper time or enough time to be able to properly assess this
    offer.

Meanwhile, the trial was set to
    proceed.

There were many expert
    witnesses that were lined up and had to be taken care of, and to be called or
  called off.




I am satisfied that in the particular circumstances of this
    case, the case had gone too far for the plaintiff to realistically consider
    this particular offer of settlement that was not made within the seven days as
    prescribed in the rules.

Five or six
  days with a weekend in between just was not enough.




Having said that, the trial proceeded.


And
I am satisfied, perhaps, that by midway
    through the trial, the plaintiff should have had more than an adequate
    opportunity to discuss the offer with their clients.

I am not satisfied, as I pointed out, that
    the third party in this particular case should get double costs, but I am
    satisfied that at least half of the trial was spent dealing with issues that
  perhaps could have been resolved if the offer for settlement was accepted.



[Emphasis added.]








[19]


Counsel for ICBC acknowledges that the trial
    judge had a discretion with respect to costs under Rule 37(7).

He submits, however, that the discretion must
    be exercised judicially for reasons relevant to costs.

Here, counsel for ICBC submits that the
    reasons of the trial judge on costs reflect several errors in the exercise of
  his discretion.



[20]


Counsel for ICBC submits that the trial judge was influenced in the
    exercise of his discretion by his dissatisfaction with the jury verdict and
    his unfavourable view of ICBC's "tactics" in choosing jury trials.

In that regard, he refers to the passage I
    have quoted at para. 8,
supra,
and to
    his apparently disparaging reference to ICBC taking jury trials as a tactic or
  ploy.


[21]


C
ounsel for Mr. Rorison
    agrees that the trial judge was influenced in his award of costs by his
    disagreement with the jury verdict.

She
    does not cite any authority for the proposition that this is valid basis upon
    which a trial judge may exercise his or her discretion to deny or reduce costs,
    and I know of none.

In my view, the fact
    that ICBC chose to elect trial by jury in this case was irrelevant to the
    question of costs.

Nor was the fact that
    the trial judge disagreed with the jury verdict a relevant consideration.

To the extent the trial judge relied on these
    factors in exercising his discretion under Rule 37(7), I am satisfied that he
  erred.


[22]


Counsel for ICBC also states that the trial
    judge erred in placing any weight on the fact that the time Mr. Rorison had to
    consider the offer included a weekend.

Counsel noted that the minimum seven days referred to in Rule 37 will
    always include a weekend, such that this is an irrelevant factor in determining
  whether a party has had a reasonable time to consider an offer.


[23]


I agree with counsel for ICBC that the fact
    there was a weekend between the offer and the commencement of the trial was an
    irrelevant consideration on the question of costs, although I think the trial
    judge's principal point in referring to that fact was simply that there was not
    enough time for Mr. Rorison to consider the offer before the trial
  commenced.



[24]


It is difficult to ascertain, however, on what
    basis the trial judge came to the conclusion that six days was insufficient
    time for Mr. Rorison to consider and respond to the offer.

Counsel for Mr. Rorison stated that Mr.
    Rorison was prepared for trial at the time the offer was received.

Thus, this is not a case in which taking time
    to consider an offer would have interfered significantly with trial
    preparation.

Further, there was no
    suggestion that counsel could not contact Mr. Rorison, or that he was
    unavailable to discuss the offer.

Finally, this was not the first offer which had been exchanged between
    the parties.

The history of offers
    between the parties included an offer of $82,500 (plus costs and disbursements)
    made by ICBC on May 5, 2000 (and subsequently withdrawn), and an offer
    made by Mr. Rorison on May 15, 2000 to settle for $250,000 (plus interest,
    costs and disbursements).

In other words, less
    than three weeks before receiving the offer of $62,500, Mr. Rorison had
    received an offer from ICBC and had made a counter-offer.

This is some indication that Mr. Rorison had
    a good idea of what his parameters for settlement were well before the
  commencement of the trial.


[25]


The trial judge concluded, nonetheless, that
    it was reasonable to assume that it would have taken Mr. Rorison until "midway through the trial" to
    adequately consider the most recent offer.

This would have been 14-15 days
  from the date the offer was made.



[26]


ICBC submits that in coming to this conclusion,
    the trial judge was labouring under two misconceptions in relation to the
    application of Rule 37, both of which are reflected in the last paragraph of
    the passage from the trial judge's reasons quoted at para. 18,
supra
.

The first misconception was that an offer could be accepted after the
    trial had commenced; the second was that ICBC would be entitled to double costs
    from the date the offer was made.

The
    first misconception is belied by the wording of Rule 37(13), which provides
    that an offer is only open for acceptance to the date the trial commences.

The second misconception is belied by Rule
    37(24)(b) which provides for double costs only where a plaintiff's action has
    been dismissed, which did not occur here.



[27]


In my view, the order of costs cannot be
    sustained, based on the errors I have referred to in the trial judge's
    reasoning.

In summary, the order was
    clearly driven by the trial judge's view that the jury verdict was unfair to
    Mr. Rorison.

Further, the trial judge
    considered irrelevant matters in reaching his decision, and he misinterpreted
  the relevant provisions of Rule 37.



[28]


The question, therefore, is what order of costs
  is appropriate in these circumstances.


[29]


In this case, had ICBC provided its offer to
    settle to Mr. Rorison the previous afternoon (the holiday Monday), it would
    have been entitled to full costs assessed under Rule 37(24).

Given the factual context in which the offer
    was made, I can see no basis for depriving ICBC of those costs.

Mr. Rorison had six days to consider the
    offer; he had had the opportunity to consider and make other offers within the
    previous three weeks; there is no indication that he was unavailable for
    consultation with respect to the offer; and there is nothing unusual about the
    offer, or the circumstances, which would indicate that further time was
    required.

Rather, it appears that these
    parties were so far apart in their perceptions of the value of Mr. Rorison's
    claim, that the offer was simply allowed to lapse.

If Mr. Rorison was unwilling to accept an
    offer of $82,500 on May 5th, and valued his claim at $250,000 on May 15, it is
    unlikely that he would have been willing to seriously consider an offer of
    $62,500 on May 23rd.

There is every
    indication that, by that date, he was ready to go to trial and was determined
  to do so.


[30]


In the result, I would allow
    the cross-appeal, set aside the order of costs made by the trial judge, and
    substitute an order that Mr. Rorison is entitled to his costs assessed to May
    23, 2000, and ICBC is entitled to costs assessed from that date to, and
  including, costs of the application before the trial judge for costs.


[31]


In summary, I would dismiss the
  appeal and allow the cross-appeal as set forth in para. 30.







The Honourable
Madam Justice Prowse







I
  AGREE:







The
    Honourable
Mr.
  Justice Esson







I
  AGREE:







The
    Honourable
Madam
  Justice Levine








