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Severance of liability – what does it take?

Is liability always determined at the same time as damages in a personal injury claim? What if liability is the big question? My injuries are straightforward, we just need to figure out the liability so that the claim can be settled and I can move on – what can the court do for me?

In Wills v. A.G. Woodward Roofing 2016 BCSC 611 the plaintiff made an application to split the liability and quantum portions of his claim, hoping to have a liability only trial in June of 2016, leaving the damages to be determined at a later date. The plaintiff argued that the quantum (amount of damages in dollars) was not of much dispute given the fact that the defence expert acknowledged the significant and ongoing nature of the plaintiff’s injuries and attributed all of them to the crash. Master Caldwell accepted this generally, stating that the liability was what was troublesome in this circumstance; the question being whether the plaintiff, who was riding a motorcycle at the time of the crash, was passing vehicles on the left or the right side of the road.

Master Caldwell explains that severance is a very unusual relief and granted in only those circumstances which go a long way toward being exceptional. While identifying numerous important factors, including the plaintiff’s financial circumstances, the first assessment he performed was a determination of whether the credibility of the claimant was so central to both issues (quantum and liability) that it was impossible to separate the them. He referred to a previous case (Desharnais) where the credibility of the plaintiff was central to both liability and damages claimed – the splitting of the two issues being denied as a result. Comparing the case at hand to Dasharnias, he made the following remarks:

[19]         Here, it does not seem to me that the same can be said. There are witnesses to this incident, there are engineering reports which were absent in the other case, and I specifically recall asking counsel in Desharnais if there were engineering reports and the like that would bolster credibility and the answer was in the negative. 

[20]         So we are forging ahead on this one in a situation where I do think there is a pretty clear delineation or break between the two issues, that is, liability which will be a self-contained chunk of evidence, and quantum which as well if it is pursued will be not as dependent on credibility as would the Desharnais situation which as I say was a very unique set of facts.

Master Caldwell went on to discuss the ultimate issue; to ensure access to the courts – access to justice. As he discusses the potential time and cost savings that severance may offer, he laments the unknown. Ultimately, Master Caldwell grants the order, underlining the opportunity for resolution and avoidance of further court resources that should follow a liability finding in the specific circumstances of this case:

[23]         That brings me to the ultimate issue of the role of the Court in this. While it is true that cases have said that this is not a normal order to be granted and should only be granted in somewhat exceptional circumstances or as I say ones which mitigate towards exceptional, I also think it is a situation where we cannot turn a blind eye to the fact that access to courts is an important right for the parties and to an extent forcing this ahead for nine days in June may also be a misuse of court resources. 

[24]         I am sensitive to the fact that setting the trial down the road again if we need to deal with quantum is something that I have battled with on other applications and on this one over the last three quarters of an hour as I considered the matter in my chambers. It is a matter of more than inconvenience for the Supreme Court schedulers to have to try and coordinate two trial dates for one action, but it is also the case that I must consider that if this can stand a significant chance of being resolved in two or three days, without the need for the use of another week plus of court time, that that is a benefit to the court system itself. I recognize that if I make that order there may still be a significant delay into next year for the quantum to be resolved. 

[25]         I can tell both counsel that this has been a – I have certainly reserved on matters and come to difficult decisions, but this matter needs to be answered and it has been one of the more difficult ones that I have had to decide because there are issues that mitigate both ways. I am not in favour of severing quantum and liability except in what I consider to be very appropriate and quite exceptional circumstances. In spite of the able submissions of Mr. MacDonald, I think this case mitigates ever so slightly into that category. 

[26]         The costs to be saved to both litigants to determine the issue of liability up front will at the very least enhance the opportunity for resolution and they may avoid the need for further court resources. It will make the issue of determination of the one issue far more accessible to both parties in terms of money outlay. If there is a delay in the defendant having to pay out, that is at the behest of the plaintiff in any event because it is highly likely that if this goes ahead in June on the issue of liability, a decision will not be forthcoming for some time and thereafter it probably will presumably have to be set and the plaintiff will be waiting for their money beyond what might normally have been the situation. 

[27]         I do not think I can say an awful lot more. I can tell you as I have already said as I went back there I talked myself into and out of this decision a couple of times and I only did so because it is such a tight shot between these two parties. On the one side, the defence rightly raises the uniqueness of these kind of situations for severance, but I think in all of the circumstances it mitigates slightly in favour of the plaintiff and so the order will go. 

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