2005 BCSC 35 Hemmerling v. Hole

Before: Master Hyslop

Reasons for Judgment

Counsel for the Plaintiff	F.R. Scordo
Counsel for the Defendants	R.E. Ross
Date and Place of Trial/Hearing:	December 13, 2004
	Kamloops, B.C.

[1] The plaintiff seeks to have the trial of this action as to:

1. liability and assessment of damages be severed for the purposes of trial.

The applicant will rely on Rule 39(29) and (30) of the Supreme Court Rules.

[2] The defendants oppose this application.

[3] The trial of this action is to take place before a jury commencing September 26, 2005, for fifteen days.

BACKGROUND:

[4] The plaintiff was involved in a motor vehicle accident on September 12, 2001 on the Trans Canada Highway, in the Pritchard area. The plaintiff was the driver of a motor vehicle which collided with a motor vehicle driven by the defendant, Douglas Hole. The accident took place when the plaintiff’s vehicle crossed into the lane in which the defendant was travelling. Action taken by both the plaintiff and the defendant resulted in a collision.

[5] The plaintiff, at the time of the accident, was 17 years old. The plaintiff claims non-pecuniary damages, past wage loss, loss of future capacity, cost of future care, special damages and costs.

[6] The plaintiff alleges he suffered injuries, the most significant ones being a head and femoral fracture. The plaintiff was in a coma for a period of time. The medical evidence in support of this application and attached to the plaintiff’s affidavit, confirm these injuries. The plaintiff has no memory of the accident. Plaintiff’s counsel suggests that the plaintiff may have fallen asleep while driving.

[7] Witnesses to the accident are the plaintiff’s passenger, the defendants and two passengers in the defendant’s vehicle. A witness, who was travelling ahead of the defendant’s vehicle, and in the same direction, encountered the plaintiff’s vehicle in his lane of traffic. This witness did not see the actual collision, but heard it and saw its results.

[8] The plaintiff’s income is $939.18 per month from the Insurance Corporation of British Columbia (“I.C.B.C.”), and he has no significant assets.

THE PLAINTIFF’S POSITION:

[9] Plaintiff’s counsel estimates that five days of trial is sufficient to determine the issue of liability. The plaintiff says no matter what the outcome on liability, there will be a speedy and inexpensive determination if liability is tried first. Counsel for the plaintiffs stated that liability is “hotly disputed”. He said that should the plaintiff not be successful on liability that will end the matter. If there is success on liability, then the plaintiff’s claim is likely to settle as a result of negotiations.

[10] The real reason for this application is that the plaintiff, in order to comply with the Rules, will be required to incur the costs of providing 13 medical care provider reports, at a cost between $15,000.00 and $20,000.00, not including the cost of court attendances. In addition, counsel for the plaintiff estimates that assessments will be required of a physical capacity consultant and vocational consultant at a cost of between $10,000.00 and $15,000.00, not including court attendances. Counsel for the plaintiff argues that by not severing liability from the assessment of quantum, the plaintiff will be prevented from effectively carrying out this action.

THE DEFENDANTS’ POSITION:

[11] Defendants’ counsel argues that this case is neither exceptional nor extraordinary, which he says is the test that has to be met in order for the plaintiff to be successful in this application.

[12] Defendants’ counsel further argues that the collision and its severity are relevant to both liability and quantum, as the evidence may support contributory negligence. Further, that the defendants should not be deprived of the trial being heard by a jury, as the plaintiff’s credibility will have an impact on both liability and damages, and there is a risk that two different juries might make conflicting findings.

[13] The defendants claim that the cost of severing liability from the assessment of damages will cost more, and the plaintiff ought not to be allowed to shift these costs to the defendants.

THE LAW:

[14] The severance of liability from the assessment of damages is permitted by Rule 39(29). Its application is discretionary. See Lord v. Royal Columbia Hospital, [1980] B.C.J. No. 809; (1980), 19 C.P.C. 233 (BCCA). Master Kirkpatrick, as she then was, in Westwick v. Culbert, [1992] B.C.J. No. 2121, sets out the criteria for permitting severance. She states at p. 4:

The Court in Beddow also referred to the decision in King v. On-Stream Natural Gas Ltd. Partnership, [1990] B.C.J. No. 1399 (June 18, 1990) Vancouver Registry No. C894711 (S.C.)[1990] B.C.W.L.D. 1596, which enumerated the circumstances in which an order for severance should be made:

“(a) In an extraordinary and exceptional case;

(b) When the issue to be tried is simple;

(d) When there is some evidence which makes it at least probable that the trial of the separate issue will put an end to the action.”

[15] Master Kirkpatrick then went on to say:

I think that, on balance, the weight of the authorities requires that, on an application for severance, the applicant must establish that there exist extraordinary, exceptional, or compelling reasons for severance, and not merely that it would be just and convenient to order severance.

[16] Mr. Justice Melnick in Bidochka v. Ford Motor Company, 2000 BCSC 0095; [2000], B.C.J. No. 184, refers to the criteria stated in Westwick. In Bidochka, Mr. Justice Melnick, though finding the circumstance of the plaintiff as not extraordinary or exceptional, he, at ¶9, found the plaintiff’s financial circumstances were such that the plaintiff would:

…not be able to have her day in court if she is put to proving the issue of quantum before the question of liability is determined.

[17] In Anderson v. University of British Columbia et al, 51 B.C.L.R. (1991), at p. 393, Mr. Justice Finch found the financial circumstances of the plaintiff in that case was one factor to consider in exercising his discretion under Rule 39(29).

DISCUSSION:

[18] Similarly, as in Bidochka, the plaintiff’s case is not extraordinary or exceptional, but it is compelling due to the cost of the medical experts’ reports and additional assessments, if the issues of liability and the assessment of damages are heard at the same time resulting in the plaintiff not having his day in court. This is due to his dire financial circumstances. In Westwick, Master Kirkpatrick reviewed in detail the income of the plaintiffs, as well as the balance sheet of the plaintiffs’ ranch company, concluding the company had equity. Master Kirkpatrick concluded, as did Mr. Justice Warren in McGuire v. Avanti Agencies Ltd., [2002] B.C.J. No. 1886 (B.C.S.C.) that the plaintiffs financial circumstances “… were not so dire as to warrant severance”. (¶5).

[19] In McGuire, Mr. Justice Warren found that the only unusual aspect of that case was that there may be damages that had not been contemplated, requiring further assessments by the experts at the expense of the plaintiff. In Legrand v. Canning, [2000] B.C.J. No. 2250 (B.C.S.C.), the plaintiff wished to split liability having it heard pursuant to Rule 18A of the Rules of Court. The plaintiff, who lived in Ontario, did not want to leave her ill young son. In that case, Mr. Justice Scarth stated that matters of credibility as to how the accident occurred and nature of the injuries weighed against severance. Further, he found there were no extraordinary, exceptional or compelling reasons for severance, and could find “little by way of time and expense that would be saved”. In Pitzel v. Deasty, [2003] YJ 1 (Y.K.S.C.), the defendant wished to sever the issues as to liability and quantum in the motor vehicle accident. The defendant pointed to the fact that the plaintiff’s medical evidence would not be available to the defendant for a considerable period of time. Mr. Justice Hudson did not regard this as “compelling or extraordinary”. Mr. Justice Hudson noted that the cost of mobilizing the witnesses and counsel to the Yukon, if the liability and quantum were severed, would be duplicated.

[20] Is the issue to be tried simple? In my opinion, the issue of liability is straightforward. The plaintiff has no recollection of the accident. The witnesses, to whom I have referred, will give evidence as to what they saw and heard. Plaintiff’s counsel stated that the defendant will claim “agony of collision”. In response, plaintiff’s counsel alleges that the male defendant could have brought his vehicle under control avoiding the accident.

[21] Is the issue to be tried separately interwoven with other issues in the action? There is no dispute that the plaintiff was injured. As to how seriously, that is the matter for the assessment of damages. As the plaintiff has no memory of the accident, there is no credibility issue for the plaintiff relating to how the accident occurred which would affect the assessment of damages.

[22] In Bidochka, Mr. Justice Melnick acknowledged in that particular case that “credibility is pivotal”. (¶10) Despite this, he ordered severance, subject to certain conditions, to address the defendant’s concern as to the binding nature of answers and questions posed by the defendant.

[23] Is there some evidence which make it at least probable that the trial of separate issue will put an end to the action? Liability in this matter is understandably “hotly disputed”. Should the plaintiff have success in liability, it is at least probable that a negotiated settlement would occur.

[24] I raised with counsel whether I should concern myself as to whether the assessment of damages would require a second jury, or whether it would be assessed by judge alone. I had no response from counsel.

[25] Master Powers, as he then was, in Fagervik (Guardian ad litem of) v. Dzaman, [1996] B.C.J. No. 3159 ordered two separate trials, one dealing with the issue of liability and the other dealing with quantum. The issue of liability was to be heard by a judge and jury. Master Powers ordered that a separate notice of trial for the issue of quantum would be issued and delivered, permitting either party to file a notice requiring a jury trial to assess damages, in accordance with the Rules. In Bidochka, a case that was to be tried by judge alone, Mr. Justice Melnick ordered that the trial be heard in two parts. In Lord, the Court of Appeal permitted proceeding with the issue of liability by judge and jury and the assessment of damages by judge alone. The application before me, not only invokes Rule 39(29), but also (30) of the Rules.

DECISION:

[26] I order that the trial of liability and assessment of damages in this action be severed. The issue of liability will be heard in the week of September 26, 2005, before a judge and jury.

[27] The assessment of damages should it be necessary, shall be tried by judge alone. As to whether the same judge who hears the issue of liability hears the assessment of damages, I leave that decision to the judge who hears the trial with a jury.

COSTS:

[28] Costs shall be in the cause.

“Master H. Hyslop”

Citation:	*Hemmerling v. Hole,*
	2005 BCSC 35