Geoffrey D.R. Adair

The respondents were wholly successful on the appeal and sought partial indemnity costs totaling over $111,000.

The appellants conceded the respondents were entitled to costs but argued the amounts sought were excessive, proposing a total of $30,000.

The Court of Appeal fixed the costs payable by the appellants at $20,000 for Vicentini, $10,000 for Ford Credit, and $10,000 for Personal Insurance, inclusive of disbursements and HST.

The appellants sought a new trial arising from a jury verdict in a child pedestrian personal injury action, challenging evidentiary rulings on vehicle brakes, expert human factors evidence, and the fairness of the defence conducted by counsel appointed by an insurer reserving rights.

The court held the trial judge properly excluded late-disclosed participant expert opinion evidence extending beyond the contemporaneous inspection form, properly admitted unobjected-to accident reconstruction and human factors evidence, and committed no error in charging the jury.

The court also held that any alleged insurer-insured conflict had to be raised promptly before trial and that no unfairness in the defence was demonstrated.

The appeal was dismissed on liability and damages, but the costs order was varied so that trial costs payable to successful defendants were payable only by the litigation guardian personally and in that capacity, not by the minor appellants personally.