James Cavanaugh

The plaintiff suffered a severe traumatic brain injury in a motor vehicle accident while riding as a passenger in a vehicle driven by the defendant.

Prior to the accident, both the plaintiff and the driver had consumed alcohol at the All Star Tap & Grill House.

The court found the driver 80% liable for the accident due to impaired driving and the commercial host 20% liable for over-serving alcohol and failing to prevent the intoxicated driver from operating a vehicle.

The plaintiff was found 25% contributorily negligent for failing to wear a seatbelt, entering a vehicle with an impaired driver, and encouraging the driver to speed.

The court assessed the plaintiff's damages, including $300,000 for non-pecuniary damages, significant amounts for past and future loss of income, and over $9 million for the cost of future care.

Family Law Act claims were also awarded to the plaintiff's parents and siblings.

Following an assessment hearing relating to costs, the court considered written submissions from the parties regarding entitlement to costs of the assessment proceeding itself.

The moving party argued that costs should be awarded because participation in the hearing was necessary to quantify the costs previously awarded.

The responding party argued that the amounts claimed had been substantially reduced during the assessment.

The court concluded that success was divided and that it was appropriate for each party to bear its own costs.

Following a successful trial in an accident benefits dispute, the parties were unable to agree on the quantum of trial costs after the Court of Appeal permitted submissions on the issue.

The plaintiff sought nearly $297,000 in legal fees plus significant disbursements, including expert accounts with high compound interest.

The court held that the interest component of the damages under the Statutory Accident Benefits Schedule did not justify treating the litigation as a $500,000 case for costs purposes.

The hourly rates claimed by plaintiff’s counsel were reduced and significant reductions were made to the claimed fees and certain disbursements.

The court fixed partial indemnity fees at $170,000 plus GST and disallowed interest claimed on expert disbursements.