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The Injured to get no Sympathy when Applying Legal Principle says Court

In awarding the full costs of a 28 day medical malpractice trial against the unsuccessful injury claimant the Court of Appeal had this to say,

[213]     I am not unsympathetic to the plight of the [] family. As a consequence of this judgment, they face a significant costs award in addition to the burden of continuing to provide loving care for Joseph. The appeal must, however, be determined not by sympathy but by the application of established legal principles. (Briante v. Vancouver Island Health Authority,2017 BCCA 148)

The family brought the claimant into a psychiatric unit with concerns that he was having delusions. He was assessed by a psychiatric nurse and an emergency physician and discharged without referring him to the on-call psychiatrist. Six days later, the claimant attempted suicide in the presence of family members and suffered permanent brain damage. The claimant and his family brought a medical malpractice lawsuit against the nurse, physician and hospital.The trial judge found that the nurse and physician had been negligent, but found that the claimants had failed to prove causation. The claims were dismissed.

Nevertheless the trial judge awarded the claimants costs on all issues except for the standard of care issue on which he ordered the parties to bear their own costs.  The Court of Appeal found that he trial judge was wrong to have denied the nurse, physician and hospital their legal costs as they had successfully defended the lawsuits.

Generally costs of a proceeding must be awarded to the successful party. A substantial onus is on the party seeking to have the court exercise its discretion to depart from the usual rule. This expectation that the successful party is entitled to legal costs has been given codified in Rule 14-1(9) of the Supreme Court Civil Rules, which provides that:

Rule 14-1(15) The court may award costs (a) of a proceeding,(b) that relate to some particular application, step or matter in or related to the proceeding, or(c) except so far as they relate to some particular application, step or matter in or related to the proceeding and in awarding those costs the court may fix the amount of costs, including the amount of disbursements.

The discretion in  Rule 14-1(15) must be exercised judicially in accordance with established principles. Such an order is not a regular part of litigation and should be confined to relatively rare cases. One example is misconduct in the litigation as, for example, when a party deliberately misleads or “displays a light regard for the truth”. A second is when the court rules against the successful party on one or more of the issues that took a discrete amount of time at trial.

In exercising the power to fix costs a judge cannot act arbitrarily or capriciously. As the Court of Appeal put it, “He or she must act in a manner consistent with the Rules and the principles that have long governed such awards.” In my view however the Court has lost an opportunity to emphasize that compassion and access to the courts are part of our principles of justice for all.

Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A LL.B.

Tags: Costs, Negligence, New Civil Court Rules, Rule 14-1(5) Costs Considerations, Rule 14-1(9) Successful Party, Standard of Care

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