Before: The Honourable Madam Justice H. Holmes

Reasons for Judgment
In Chambers

Counsel for Plaintiff:	K.M. Morrison
Counsel for the Defendant ICBC:	S. Kovacs
Date and Place of Hearing:	September 12, 2008
	New Westminster, B.C.

INTRODUCTION

[1] The plaintiff David Biggs applies, in his personal injury action, for an order that the issue of liability be tried before the issue of quantum of damages. The action arises from a motor vehicle accident on April 30, 2006, from which Mr. Biggs lost his left leg below the knee. Mr. Biggs was riding his motorcycle on Highway #3 near Hope, B.C., and collided with another vehicle travelling in the same direction. The action is at an early stage.

[2] Mr. Biggs bases his application, which the defendants oppose, mainly on his interest in resolving the disputed question of liability as quickly as possible, because of his difficult personal circumstances while this matter remains uncertain.

THE LAW THAT APPLIES

[3] The application is brought under Rule 39(29) of the Supreme Court Rules, which allows for the trial of one question before other questions:

39(29) The court may order that one or more questions of fact or law arising in an action be tried and determined before the others, and upon the determination a party may move for judgment, and the court, if satisfied that the determination is conclusive of all or some of the issues between the parties, may grant judgment.

[4] Mr. Biggs relies also on Rule 1(5), which sets out the overall object of the Rules:

1(5) The object of these rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.

[5] Counsel agree that abundant case authority interpreting and applying Rule 39(29) has indicated that severance of questions for trial is not a matter of course, that there must be compelling reasons to order severance, such as a significant savings in time and expense: Bramwell v. Greater Vancouver Transportation Authority, 2008 BCSC 1180. In Nguyen v. Bains, 2001 BCSC 1130, 11 C.P.C (5th) 177, at ¶11, Madam Justice Martinson set out some of the matters that courts will often consider in this regard:

a. A judge's discretion to sever an issue is probably not restricted to extraordinary or exceptional cases. However, it should not be exercised in favour of severance unless there is a real likelihood of a significant saving in time and expense.

b. Severance may be appropriate if the issue to be tried first could be determinative in that its resolution could put an end to the action for one or more parties.

c Severance is most appropriate when the trial is by judge alone.

d. Severance should generally not be ordered when the issue to be tried is interwoven with other issues in the trial. This concern may be addressed by having the same judge hear both parts of the trial and ordering that the evidence in the first part applies to the second part.

e. A party's financial circumstances are one factor to consider in the exercise of the discretion.

f. Any pre-trial severance ruling will be subject to the ultimate discretion of the trial judge.

DISCUSSION

[6] Mr. Biggs does not contend that he would be unable to pursue his action unless the questions of liability and damages are severed. Rather, he is concerned primarily to accelerate the process to judgment in his favour (if he is successful) by proceeding in two separate, shorter trials. It is his understanding that shorter trials are more easily scheduled for early dates. Mr. Morrison spoke of the availability of only distant court dates for trials of twenty days or more.

[7] Mr. Biggs is particularly concerned that his current state of anxiety and some dysfunction, because of the litigation, leaves him unable to properly fulfill his responsibilities, under a government contract, to care for four high-risk teenagers. Mr. Biggs earns $14,000 per month under that contract, and those earnings are the basis of his and his common-law spouse’s financial plan for retirement. He has maintained the contract since the accident, but only with the considerable assistance of his spouse, who is feeling the strain of the additional duties. He therefore hopes for a speedy determination of liability for his injuries.

[8] However, I am not persuaded that separate trials of liability and damages would accelerate a judgment in Mr. Biggs’ favour. Information concerning the availability of court dates for twenty-day trials is of limited assistance, because counsel appear to agree, on the information available to them thus far, that separate trials in relation to liability and damages would take approximately five days each, or slightly longer, and there is no suggestion that a trial of both liability and damages would increase the aggregate trial length.

[9] Even if a significantly earlier date were available for a five-day trial on liability alone, there is no indication that, if successful in that trial, Mr. Biggs would receive an award of damages any sooner than he would have done after a combined trial on liability and damages. Unless, after a favourable determination as to liability, damages were to be quickly resolved by agreement, a further trial as to damages would be necessary.

[10] Also, as Mr. Kovacs notes, Mr. Biggs has failed to take numerous steps which could have brought his action to an early trial. Although the accident was more than two years ago, document production was only recent. Examination for discovery has not taken place. The defendants have not yet made an election as to the mode of trial. No notice of trial has been issued, and no requests for trial dates have been made. It therefore appears that Mr. Biggs’ desire for a speedy resolution of his action is of relatively recent origin.

[11] There is no doubt that there would be financial advantage to Mr. Biggs to have a trial as to liability alone before incurring the expense associated with a trial as to damages. As Mr. Morrison notes, Mr. Biggs could then receive the determination as to liability without bearing the expenses of preparing for and presenting his case as to damages. If he were unsuccessful as to liability, he would be entirely spared the expenses associated with damages. If he were successful as to liability, the parties might settle as to damages; and if they did not settle, Mr. Biggs could take on the expenses of proving his damages confident in the knowledge that he would ultimately receive an award.

[12] There are two difficulties with this approach.

[13] First, absent a settlement of damages, the bifurcated procedure Mr. Biggs proposes appears likely to extend the overall duration of the litigation, and thus to work against at least one aspect (“speedy … determination”) of the overall objective of the Rules to achieve the “just, speedy and inexpensive determination of every proceeding on its merits”. Only after a finding of liability would Mr. Biggs begin his preparation for trial in relation to damages, by working with the various expert witnesses he considers to be necessary. After a favourable determination as to liability, some delay in scheduling a trial as to damages would thus necessarily follow.

[14] Second, the financial advantage to Mr. Biggs that would flow from separate trials of liability and damages would flow equally to most, if not all, plaintiffs in personal injury actions. Mr. Biggs’ injury, serious though it is, is more straightforward in its character and effects than the injuries of many plaintiffs in personal injury actions. The expenses associated with proof of his damages are accordingly likely to be lower than in many cases that come before this court.

[15] There may also be a basis from which to conclude that separate trials would increase the aggregate costs to the parties and the burden on the Court. Mr. Kovacs refers to possibilities that certain witnesses would be required in relation to each of liability and damages, but, in my view, that is unlikely; more likely is that the issues to which Mr. Kovacs referred in this regard would be addressed by some other means. I therefore place little weight on this consideration.

[16] Even if a case need not be exceptional to support an order for severance, it must disclose some compelling reason for such an order. Compelling reasons must arise from the circumstances of the particular case. Although I have considerable sympathy for Mr. Biggs’ personal situation, I find no compelling reason for separate trials of liability and damages. Difficult though Mr. Biggs’ personal circumstances undoubtedly are, I am not persuaded that, in the context of the litigation as whole, they support a departure from the general practice by which all issues are determined in a single trial.

CONCLUSION

[17] The application for severance of liability and damages is dismissed.

“H. Holmes, J.”
The Honourable Madam Justice H. Holmes

Citation:	*Biggs v. ICBC,*
	2008 BCSC 1343