C.J.Q.B. 2002 SKQB 47 Q.B. A.D. 1992 No. 3244 J.C.S. IN THE COURT OF QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: MELODY KOZMENIUK and ZELLERS INC. DEFENDANT Orest Rosowsky, Q.C. for the plaintiff Bruce W. Wirth for the defendant FIAT February 6, 2002 KRUEGER J. [1] This is an application to determine the issue of costs that were reserved in my judgment dated March 5, 2001 [(2001) 2001 SKQB 114 (CanLII), 202 Sask. R. 273]. The defendant seeks to have the costs reduced because the plaintiff was unsuccessful in part of her claim. FACTS [2] On March 23, 1990, the plaintiff was injured when she fell after stepping on a metal plate bolted to the floor at the mall entrance of the defendant’s store. The trial did not commence until November 27, 2000. It lasted for parts of 12 days. On November 22, 2000, the defendant served an offer to settle for $75,000.00 plus taxable costs. The offer was not accepted by the plaintiff. The judgment obtained by the plaintiff was for $77,406.15 together with some additional special damages and pre-judgment interest for total judgment of $120,540.43. ISSUES [3] The issues to be resolved on this application include:1. Whether the success of each party affects the amount of costs to be awarded to either;2. What amount should be awarded for expert witnesses; and;3. The level at which a second counsel fee should be taxed or allowed. REDUCING TAXABLE COSTS [4] It is the position of counsel for the defendant that the plaintiff’s bill of costs should be taxed at 50 percent of the appropriate column of the Tariff. Defence counsel argues that the plaintiff only received about 13 1/3 percent of the amount claimed during the trial; that the costs are disproportionate to the judgment and that the offer to settle, made in good faith, was never formally responded to. Counsel for the plaintiff counters that more was obtained than set out in the offer to settle; extensive witness costs were incurred because the defendant declined to agree to the filing of medical reports and that the costs were proportionate to the claim advanced. [5] Taxable court costs should not be based on either hardship or the degree of success. The amount expended by party for investigating or in gathering evidence to either advance claim or defend it may actually exceed the value of the claim. Solely because recovery falls short of the amount claimed is not a reason to deprive a successful party of costs. See Zielinski v. Saskatchewan (Beef Stabilization Board), 1993 CanLII 9132 (SK CA), [1994] W.W.R. 44 (Sask. C.A.). [6] The plaintiff’s action was divided into two causes. She claimed damages for the ankle injury and for a pain disorder developed as a result of the ankle injury. Success was obtained only on the first cause. However, most of the evidence introduced at the trial on behalf of the plaintiff related to the second cause. At best, success was divided. The greater damages claimed related to the pain disorder. [7] Costs are in the discretion of the Court. See Guyer Oil Company Ltd. v. Fulton, 1973 CanLII 974 (SK QB), [1973] W.W.R. 613 (Sask. Q.B.). However, costs usually go to the successful party: Thomas v. Lafleche Union Hospital Board (1991), 1991 CanLII 8039 (SK CA), 93 Sask. R. 150 at 154 (C.A.). When defendant makes an offer to settle that is not accepted and the plaintiff does not recover as much as was contained in the offer Rule 184(B)(2)(a) applies. The defendant is entitled to double costs from the date of service of the offer to the date of judgment. Conversely, if the plaintiff recovers more than was set out in the offer, the Rule has no application, and unless otherwise ordered, costs are awarded to the plaintiff. [8] In Alvin’s Auto Service Ltd. v. Clew Holdings Ltd. (1998), 1997 CanLII 10891 (SK QB), 157 Sask. R. 278, Baynton J. reduced the successful plaintiff’s costs by 50 percent when the plaintiff sued on five separate causes of action but succeeded on only two. In Kim v. Dalrymple (1996), 1996 CanLII 6878 (SK QB), 138 Sask. R. 319 (Q. B.), Kyle J. reduced the plaintiff’s costs by 50 percent from the appropriate tariff when she overstated her claim. In Hassler v. Moose Mountain District Health Board, 2001 SKQB 437 (CanLII), [2001] S.J. No. 634, the plaintiff’s costs were reduced by 15 percent when failed claims for punitive and exemplary damages were treated as separate causes. Costs were reduced by Gerein C.J. because those issues marginally lengthened the trial time. In this case over half of the witnesses called to testify for the plaintiff and most of the trial time was dedicated to the pain disorder claim. That claim provided only minor non-pecuniary damages for the plaintiff. It is appropriate in this case to reduce by 50 percent the plaintiff’s costs taxable under Schedule 1"B”, Column 4. EXPERT WITNESSES [9] Counsel for the plaintiff referred to the guidelines laid down by the Court in Electronic Superstore Ltd. v. Geransky Brothers Construction Ltd. et al (1991), 1991 CanLII 7581 (SK QB), 90 Sask. R. 150 (Q.B.), for determining whether to allow all or part of expert witness charges: 1. The services of the expert were reasonably necessary as part of the case of the party at trial; 2. The services were incurred in procuring evidence, in preparation of report or in attending or preparing to attend at the trial; 3. The services were not incurred to assist counsel in the preparation or presentation of the case; 4. The attendance at trial by the expert was for no longer than reasonably necessary to give evidence (although if the presence of an expert at trial during other testimony will expedite the trial, such additional time may be considered); 5.The services of the expert were not otherwise duplicated at trial; 6.The charges (and disbursements such as travel costs) of the expert were reasonable and were not higher than necessary by reason of the over-qualification of the expert; 7. The cost of the services were not disproportionate to the economic value of the issue at risk; 8. The services were not incurred by the expert to increase his level of expertise; 9. The costs are such that it is equitable that the unsuccessful party is “saddled” with them. [10] The defendant would not permit the plaintiff to file medical practitioners’ reports without calling the doctors for cross-examination purposes. That requirement was reasonable in this case since the success of the claim for pain disorder depended on the medical evidence. Questions as to what effect pain disorder had on the plaintiff and when that pain disorder first occurred were major matters. [11] Following assurance by her orthopaedic surgeon, Dr. Kim, that she had fully recovered from the ankle injury, the plaintiff continued to experience pain in the ankle. Her family doctor referred her to number of specialists. At one time diagnosis of fibromyalgia was made. Ultimately the defendant obtained Court order to have the plaintiff examined by Dr. Pearce, an independent psychiatrist. That examination took place in January, 1996. Thereafter the plaintiff attended on number of other specialists, including Dr. Philbrick at the Mayo Clinic, Drs. Arnold, Menzies, and Kowbel. Finally the Court ordered that the plaintiff be examined by Dr. Clarke, an anaestheologist who specializes in chronic pain management. [12] A great deal of the expert medical evidence introduced by the plaintiff was of marginal value. That, however, does not mean that the plaintiff is not entitled to any costs; after all she may have felt obliged to produce witnesses she had not intended to call. Still expert witness expenses must be reasonable; the witness testimony contribution to the case and relevant to the issues. Great care must be taken by party who obtains leave to call more than five expert witnesses to ensure that their testimony will assist the case. The expert medical witness expenses of the plaintiff shall be examined separately. Dr. J. J. Van Sittert [13] The evidence of Dr. Van Sittert was of considerable assistance. He provided testimony relating to the removal of the metal fixation device used by Dr. Kim in attaching torn ligaments to the bone during reconstruction surgery. He also discovered neuroma on the peroneal nerve. His account came to $595.00 plus $250.00 for medical report. The charges of Dr. Van Sittert are reasonable and recoverable by the plaintiff from the defendant. Dr. Rudolph Klassen [14] Dr. Klassen, an orthopaedic surgeon with the Mayo Clinic, testified by telephone. His testimony lasted one hour and twenty minutes. Like Dr. Van Sittert, he observed the neuroma on the plaintiff’s foot. It resulted from cut nerve that in turn provided permanent injury and was source of the plaintiff’s pain. His evidence was helpful in general way. He charged $600 U.S. for telephone consultations and $1,000.00 for testifying. His $1,000.00 U.S. fee for testifying is not excessive and in the circumstances is recoverable from the defendant. The consultation fee is not. Dr. Kemuel Luke Philbrick [15] Dr. Philbrick is psychiatrist with the Mayo Clinic. He too testified by telephone. His testimony lasted one hour and forty minutes. His diagnosis was of pain disorder with probably medical and psychological contributions. He did not feel that the plaintiff’s symptoms were consciously or intentionally produced, but was not sufficiently aware of her medical history to be able to offer definite opinion as to whether the ankle injury was the sole contributor to her condition. His clinical findings tend to parallel those of Dr. Pearce. He was the first psychiatrist to testify at the trial and for that reason alone provided some valuable assistance to the Court. His total charges were $1,450.00 U.S. Considering the expertise he brought, the total fees are not unreasonable and are recoverable from the defendant. The Mayo Clinic report, part of which was entered at the trial, was also reasonable charge in the amount of $380.00 Canadian and is recoverable from the defendant. Dr. Michael A. Kowbel [16] An anaestheologist who practices chronic pain management, Dr. Kowbel testified by telephone for two and half hours. He stated that the results of 1987 injury suffered by the plaintiff would have completely diminished by 1990 and, therefore, her pain disorder was direct result of the fall in the defendant’s store. When advised of the symptoms experienced by the plaintiff immediately before the 1990 injury, Dr. Kowbel modified his opinion. was not impressed with this witness and did not find his evidence particularly helpful. That was particularly so when comparing his evidence to that of the later testimony of Dr. Clarke, also an anaestheologist. Dr. Kowbel was paid $3,376.96, including $1,500.00 for locum tenens and $640.00 for consultation that took place nine days after his testimony. He was also paid $1,485.00 for medical report. Notwithstanding payment of exorbitant fees in order to secure the testimony of an expert witness, only just and reasonable charges may be recovered from the opposite party. The plaintiff is entitled to recover $1,000.00 of the fees paid to Dr. Kowbel for testimony and consultations, but no part of the payment for the locum tenens or his medical report. Dr. William James Arnold [17] Dr. Arnold is Saskatoon psychologist who on November 3, 1998, found no personality, psychological or psychiatric disorders after examining the plaintiff. At that time he would have had the benefit of the findings of three psychiatrists, two of whom had found pain disorder. The amount paid to Dr. Arnold exclusively for his testimony was $825.00. He was on the stand for two hours and forty minutes. In relation to the time spent testifying, this witness provided little assistance to the Court and was not impressive. witness fee of $500.00 is recoverable from the defendant. The medical report charge in the sum of $2,070.00 is not recoverable. Dr. Robin Paul Dickson Menzies [18] This witness is Saskatoon resident psychiatrist. He was retained to comment on the report of Dr. Pearce. Following an examination of the plaintiff, his conclusion was that she did not suffer from any mental disorder. Her pain, in his opinion, could only be attributed to physical factors. Like Dr. Arnold, he was not aware of much pre-ankle injury history and usually does not make pain disorder diagnosis when the patient’s history reveals any physical injury. Because of his criteria for ruling out pain disorder, notwithstanding obtaining the same test results as Dr. Pearce, his testimony was discounted by the Court. [19] Dr. Menzies testified for two and three-quarter hours. Like the other expert witness accounts, very little detail was provided. He charged $1,000.00 to testify and had total of 13 hours of consultation and preparation time. His account came to $3,959.00. It too is exorbitant and cannot be justified. total fee of $1,000.00 is recoverable by the plaintiff from the defendant. No part of the medical report in the sum of $1,070.00 is recoverable from the defendant. Dr. Terry Nicholaichuk [20] The plaintiff was referred to Dr. Nicholaichuk, registered psychologist, by Dr. Menzies to have the MMPI-II test administered. That was one of the tests previously conducted on the plaintiff by Dr. Pearce. The same “Conversion V” results were obtained. Dr. Nicholaichuk felt, however, that such test should not be used to eliminate complaints that could as easily be explained by physical as psychological causes. He did not interpret the test results as evidence of pain disorder. The extent of the plaintiff’s medical history known to Dr. Nicholaichuk was not revealed and he did not explain his test results. The testimony of Dr. Nicholaichuk was of limited value. He charged $400.00 for testifying and $650.00 for medical report that was not entered into evidence. His testifying fee is not excessive and is payable by the defendant. The medical report charge is not allowed. SECOND COUNSEL FEE [21] A second counsel fee is in the discretion of the Court and is limited to two-thirds of the fee paid for first counsel. In this case the plaintiff’s second counsel was experienced and the plaintiff requests fee of two-thirds that of the first counsel. Maximum fees will not be granted to second counsel solely because that person is senior member of the Bar. Need, rather than experience, forms the basis for fixing the amount of the fee. The amount at risk and the complexity of the pain disorder claim justified second counsel in this case. As it turned out, there was considerable “down time” between many of the expert medical witnesses. One lawyer could have handled the trial without difficulty. That, however, could not have been known in advance. A second counsel fee is allowed at 50 percent of the first counsel fee. [22] The plaintiff also claims costs for four pre-trial conferences, an unspecified number of management pre-trial conferences, pre-trial brief, medical reports for doctors who were not called as witnesses, and transcripts of the medical evidence obtained prior to final argument. Those are matters for consideration by the taxing officer rather than the Court. Both counsel suggested that they are not adverse to having the Court provide some guidance. Without attempting to encroach upon the authority or jurisdiction of the taxing officer and in the hope that the parties may receive some benefit therefrom and come to some agreement, the following comments are offered. Settlement Pre-trial Conferences [23] Where all that takes place at pre-trial conference is an adjournment because the conference is premature, no fee should be considered. Where negotiations take place at pre-trial conference and that conference is adjourned to allow further investigation or action, full Tariff fee may be justified whether or not the action is ultimately settled at future pre-trial conference. Pre-trial Briefs [24] There is no Tariff item for pre-trial brief. The pre-trial conference attendance charge in most cases is intended to include brief. Management Pre-trial Attendances [25] Attendances at management pre-trials are provided for in item 13 (ii) of Schedule 1“B” where they are independent of the pre-trial conference. The management pre-trial conferences conducted before me in this case were all by telephone. They were intended to move the proceedings forward and provide time lines for compliance with Court directions. charge of $50.00 for each management pre-trial conference is recommended with total limit of $500.00 for all such conferences. (The 50 percent reduction of the Tariff has been factored in.) Medical Reports for Doctors Not Called [26] No fee is recommended for medical report not filed relating to doctor not called to testify. Transcripts of Evidence [27] From time to time during the course of trial counsel order transcripts of the evidence of witnesses who have testified. The purpose is to permit counsel to directly quote from the evidence of an important witness when making arguments to the Court or jury. In this case the transcripts proved to be of considerable value to the Court in reconciling and comparing the evidence of medical experts of similar qualifications relating to specialized field. It is recommended that the plaintiff’s expenses in having the transcripts provided to the Court be recovered from the defendant. [28] Costs payable by the plaintiff to the defendant on interlocutory applications may be deducted from the plaintiff’s Bill of Costs.
FIAT. The defendant sought to have costs reduced because the plaintiff was unsuccessful in part of her claim for damages for the injury to her ankle and resulting pain disorder when she fell after stepping on a metal plate bolted to the floor at the mall entrance of the defendant's store. The plaintiff was awarded $77,406.15 plus special damages and pre-judgment interest for a total of $120,540.43. The offer to settle for $75,000 plus taxable costs had been refused. The defendant argued the plaintiff's bill of costs should be taxed at 50% as she only received about 13 and 1/3% of the amount claimed; the costs were disproportionate to the judgment and the offer to settle, made in good faith, was never formally responded to. The plaintiff argued extensive witness costs were incurred because the defendant declined to agree to the filing of medical reports. At issue was whether the success of each affects the amount of costs to be awarded to either; the amount to be awarded for expert witnesses; and level at which a second counsel fee should be taxed or allowed. HELD: 1)Taxable costs should not be based on either hardship or the degree of success. Solely because recovery falls short of the amount claimed is not a reason to deprive a successful party of costs. Although costs are in the discretion of the Court, they usually go to the successful party. 2)It was appropriate in this case to reduce by 50% the plaintiff's costs taxable under column 4 since over half of the plaintiff's witnesses who were called to testify and most of the trial time was dedicated to the pain disorder claim, which proved only minor non-pecuniary damages. 3)A great deal of the plaintiff's expert medical evidence was of marginal value. Great care must be taken by a party who obtains leave to call more than five expert witnesses to ensure their testimony will assist the case. Expenses of each was examined separately. In some cases, medical report charges or consultation and preparation time were not recoverable from the defendant as not being of value or too exorbitant. 4)A second counsel fee was allowed at 50% of first counsel fee. A second counsel fee is in the discretion of the Court and is limited to two-thirds of the fee paid for first counsel. The amount at risk and complexity of the pain disorder claim justified second counsel in this case. Although one lawyer could have handled the trial without difficulty as there was considerable down time, that could not be known in advance. 5)Costs of the four pre-trial conferences, unspecified number of management pre-trial conferences, pre-trial brief, medical reports for doctors who were not called as witnesses are matters for consideration by the taxing officer rather than the Court. It was recommended that no fee should be considered when there is simply an adjournment because the pre-trial conference is premature; there is no tariff item for a pre-trial brief and in most cases is included in the attendance charge; a charge of $50 for each management pre-trial conference be allowed to a total limit of $500; costs of transcripts be recovered from the defendant. Costs payable by the plaintiff on an interlocutory application may be deducted from the plaintiff's Bill of Costs.