ICBC Law

As recently discussed, costs consequences following trial where a formal settlement offer is not beat is a matter of judicial discretion.  While the principles behind the exercise of that discretion are reasonably well formulated the costs results can be a little trickier to predict.  Two sets of reasons for judgement were released this week by the BC Supreme Court demonstrating this discretion in action.

In the first case (Khunkhun v. Titus) the Plaintiff advanced a personal injury claim in excess of one million dollars.  She claimed she suffered from “a significant and disabling vestibular injury” as a result of a collision.  The jury largely rejected the Plaintiff’s sought damages and awarded $45,000.

ICBC made a more generous settlement offer prior to trial which the Plaintiff did not accept (about 30% higher than the jury award).   As a result, Mr. Justice Willcock stripped the Plaintiff of her costs from the time of the offer onward.  The Court did not go so far as to order that the Plaintiff pay the Defendant costs finding that it would be unjust.  Mr. Justice Willcock repeated the following reasoning from Madam Justice Humphries in Lumanlan v. Sadler:

Given the significant injury to the plaintiff, which was caused by the defendant’s foolish and reckless behaviour, and the effect on the award of a further reduction for costs, even if not doubled, and taking into account all of the above considerations, in my view it would not be fair or just to require the plaintiff to pay ICBC’s costs after the date of the offer.

In the second case released this week (Mazur v. Lucas) the Plaintiff was awarded $538,400 following a jury trial to compensate her for injuries sustained in a collision.  ICBC appealed and succeeded in having a new trial ordered.

Prior to the second trial ICBC made a formal settlement offer of $300,000.  The Plaintiff rejected this and proceeded to trial again.   This time the jury came in lower awarding $84,000 in damages.

ICBC brought an application seeking costs for both trial.  The result of this would have been financially significant.    Madam Justice Humphries declined to allow this and instead awarded the Plaintiff costs for both trials despite not besting ICBC’s offer.  In exercising its discretion the Court provided the following reasons:

[62] This court has stated many times that parties should be encouraged to settle, and if unreasonable in not doing so, may be punished in costs.  As well, the fact that an award of costs against a party may wipe out their award of damages is not determinative.  However, given all the circumstances that existed at the time the offer was made which did not change throughout the trial, I am not persuaded that the plaintiff ought to be denied her costs on the basis that she ought reasonably to have accepted the offer that was made twelve days before the trial began.  Having in mind the amount of the first award, the narrow issue upon which a new trial was ordered, the amount of the second offer, and the expected similarity of the evidence at the second trial, the plaintiff was reasonable in deciding not to accept the offer and to have the action adjudicated by a second jury.

In addition to this final result, this case is worth reviewing for the Court’s discussion of advance payment orders.  Prior to the second trial ICBC paid the Plaintiff $250,000 in exchange for a stay of execution so the Plaintiff would not collect the damages from the Defendants personally.  Madam Justice Humphries found that an advance payment after judgement should not be factored into a costs assessment.  The Corut provided the following reasons:

[14] The defendants argue that the plaintiff should be deprived of her costs of the second trial as of December 24, 2009, the date on which the negotiated agreement was signed.  They cite cases dealing with situations in which awards at trial are less than an advance, and in which plaintiffs have been deprived of costs as of the date of the advance (McElroy v. Embelton (1996), 19 B.C.L.R. (3d) 1 (B.C.C.A.); Baxter v. Brown (1997), 28 B.C.L.R. (3d) 351 (B.C.C.A.).

[15] However, those cases are all advances before trial.  The basis on which the Court of Appeal in those cases concluded that the date of the advance was relevant to costs was because the plaintiff “had in hand more at the start of the action than the amount of the jury’s verdict.” (see McElroy).  The plaintiff, upon receipt of an advance, must realistically assess his or her claim knowing that proceeding to trial carries a risk in costs (Carey v. McLean, 1999 BCCA 222).

[16] This advance was one paid to avoid execution on an existing judgment, pending an appeal that would proceed regardless of whether the plaintiff wished to accept the money in final settlement of the action or not.  That option was not open to her.  The agreement signed by the plaintiff required repayment if a new trial were ordered and the results were not favourable to her, but did not give her the option of accepting the money and ending the proceedings.  This advance payment, unlike those in the cases cited by the defendant, is not the equivalent of an offer to settle.

[17] The date of the advance is not appropriately considered in these circumstances.

I’ve written many times about the risks and consequences formal settlement offers can create in the course of a personal injury lawsuit.  Interesting reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, refusing to give ICBC double costs after the dismissal of a lawsuit because of a ‘special costs‘ clause in their formal offer.

In this week’s case (Wong v. Lee) the Plaintiff was injured in a 2003 motor vehicle collision.  She sued her driver but the lawsuit was dismissed with a Jury finding the driver was not negligent.  Typically such a result obligates the Plaintiff to pay the Defendant’s costs due to the BC Supreme Court’s Loser Pays system.

Prior to trial ICBC made a formal settlement offer of $60,000.  In these circumstances the Court has the discretion to award ‘Double Costs‘.  ICBC, on the Defendant’s behalf, asked for the Court to make such an order.  Madam Justice Dardi refused, however, finding that the ’special costs’ clause which is contained in many of ICBC’s formal settlement offers operates to create uncertainty in the settlement process.  The Court provided the following useful reasons:

[27] The plaintiff’s overarching submission is that the inclusion of para. 6 in Appendix A of the Offer to Settle is fatal to the defendants’ application for double costs. The Offer to Settle was subject to the conditions in Appendix A which provides in para. 6 as follows:

Nothing in this offer detracts from the Defendants’ right to seek special costs against the Plaintiff or his counsel above and beyond the Defendants’ entitlement to costs under this offer. Neither the making nor the acceptance of this offer shall be deemed a waiver or estoppel by the Defendants in respect to any reprehensible or improper conduct on the part of the Plaintiff and / or his counsel in respect of this proceeding. [Emphasis added.]

[28] Based upon these terms, even if the plaintiff had accepted the Offer to Settle, the defendants nonetheless would have been at liberty to pursue the plaintiff for special costs. Thus, there was a potential risk that the acceptance of the offer may not have ended all of the outstanding disputes between the parties.

[29] The Court of Appeal, in discussing Rule 9-1(5) in Evans v. Jensen, 2011 BCCA 279, articulated at para. 35 that “the most obvious and accepted intent of this Rule, namely to promote settlement by providing certainty to the parties as to what to expect if they make, or refuse to accept, an offer to settle”. The Court reasoned as follows:

[41]      This conclusion is consistent with the importance the Legislature has placed on the role of settlement offers in encouraging the determination of disputes in a cost-efficient and expeditious manner. It has placed a premium on certainty of result as a key factor which parties consider in determining whether to make or accept an offer to settle. If the parties know in advance the consequences of their decision to make or accept an offer, whether by way of reward or punishment, they are in a better position to make a reasoned decision. If they think they may be excused from the otherwise punitive effect of a costs rule in relation to an offer to settle, they will be more inclined to take their chances in refusing to accept an offer. If they know they will have to live with the consequences set forth in the Rule, they are more likely to avoid the risk.

[42]      This certainty in terms of the result of either making, accepting or refusing to accept an offer is also more conducive to the overall object of the Rules, which is “to secure the just, speedy and inexpensive determination of every proceeding on its merits”.

[30] It clearly emerges from the authorities that an important objective of offers to settle under the Rules is to bring certainty and finality to litigation. The reservation of the defendants’ right to seek special costs from the plaintiff after the acceptance of the offer is antithetical to this objective. It cannot be said that the Offer to Settle provided a genuine incentive to settle. As was stated inGiles v. Westminster Savings and Credit Union, 2010 BCCA 282 at para. 88, “plaintiffs should not be penalized for declining an offer that did not provide a genuine incentive to settle in the circumstances”.

[31] In short, para. 6 in Appendix A of the Offer to Settle militates against an award of double costs…

[34] In weighing all of the factors, the most significant being the inclusion of para. 6 in Appendix A of the Offer to Settle, I conclude that the plaintiff should not be required to pay double costs.

How can a Plaintiff who is awarded damages following a personal injury trial end up owing ICBC money?  The answer relates to the costs consequences that can be triggered by formal settlement offers.  I’ve discussed this topic previously and two sets of reasons for judgement were released this week by the BC Supreme Court further demonstrating this reality.

In the first case (Dempsey v. Oh) the Plaintiff was injured in a bicycle accident when he was struck by the Defendant’s vehicle.  In the course of the lawsuit ICBC made a formal settlement offer of $40,000.  As trial neared ICBC increased their formal offer to $165,000.  The Plaintiff rejected this and proceeded to trial.  At trial the Court made some critical findings relating to the Plaintiff’s credibility and awarded damages of just over $20,000.

Following trial ICBC asked for an order pursuant to Rule 9-1(5) that the Plaintiff pay all of the Defendant’s costs following their first formal offer.  The Plaintiff objected to such a result arguing that “if he is ordered to pay the defendant’s costs he will end up owing it money“.  Mr. Justice Myers rejected this argument and ordered that the Plaintiff pay the Defendant’s post offer costs.  In rejecting the Plaintiff’s submission the Court made the following comment “It is not the court’s function to ensure that a plaintiff makes a net recovery from an action when it has ignored a reasonable offer.  That would defeat the purpose of the Rule and does not accord with common sense”.

On another note, this case is worth reviewing in full for the Court’s discussion of Rule 14-1(10).  The Defendant argued that the Plaintiff should be deprived of his pre-offer costs as there was no sufficient reason to sue in Supreme Court.   Mr. Justice Myers rejected this argument finding that when the lawsuit was started the Supreme Court was an appropriate venue.  In making this finding the Court provided the following useful reasons:

[11]    In part due to the loss of income, this was a more complicated case than Ghelen.  This action was commenced approximately six months after the accident.  At that point I find it was reasonable for the plaintiff to have commenced the action in this Court because he was reasonably entitled to see the impact of the accident on his prior condition.  There is nothing in the rules which imposes a cost penalty on a party who files its suit quickly after its cause of action arises.  And, in Reimann v. Aziz, 2007 BCCA 448, the Court of Appeal held that there is no ongoing obligation on a party to assess his action as it progresses in the Supreme Court in order to consider whether it should be moved to Provincial Court.

In the second case released this week (Miller v. Boughton) the Plaintiff was injured in a 2006 collision.  She sued for damages and her case went before a jury.  The trial lasted 7 days.  Prior to trial ICBC made a series of escalating formal settlement offers starting at $22,000 with the final offer made shortly before trial topping out at $62,500.

The Plaintiff rejected these offers and proceeded to trial.  The Jury found the Plaintiff 45% at fault for the crash and the Defendant 55% at fault.   After taking this split into account the Jury’s award was a modest $3,880.  ICBC’s motion for post offer costs and disbursements was granted.  After factoring these in the Plaintiff likely ended up owing ICBC a significant amount of money.   (UPDATE September 12, 2011 - click here for follow up reasons confirming the Defendant’s costs were assessed at over $42,000)

Cases such as these illustrate the important lesson that formal offers create a “loser pays” system which could result in significant costs swings following trial.  When considering ICBC formal settlement offers it is important to keep this in mind when deciding whether to accept the offer or proceed to trial.

Authorities under the formal Rule 37B held that when a formal settlement offer dealing with costs consequences was accepted the BC Supreme Court had no discretion to make a different order with respect to costs.  The first case I’m aware of dealing with this issue under the New Rules was released today.  The Court upheld the principle developed under the former rule.

In today’s case (Sahota v. Sandulo) the Plaintiff was involved in a 2004 motor vehicle collision in Surrey, BC.  He started a lawsuit which was set for trial by Jury.  In the course of the lawsuit the Plaintiff incurred significant disbursements advancing the claim.  Fearful that the Jury trial would not go favorably the Plaintiff delivered a formal offer of settlement of $3,000 “plus court costs and disbursements“.  The Defendant accepted the formal offer.

The parties then could not agree on the costs consequences.  The Defendant brought a motion to address this issue.  Mr. Justice Armstong held that precedents developed under Rule 37B remain good law and that the Court has no discretion with respect to costs awards in these circumstances.   The Court provided the following reasons:

[28] Generally, the Court has discretion in relation to costs; however, where an offer to settle with specific terms as to costs has been accepted, to which Rule 9-1  applies, the Court does not have discretion to vary the terms of that agreement as they relate to costs.

[29] In Buttar v. Di Spirito, 2009 BCSC 72, Gerow J. held:

[11]      Both parties advanced arguments that the court has discretion under Rule 37B to make an order regarding costs. However, it is my opinion that the court has no discretion to make an order regarding costs in this matter. Mr. Buttar accepted the offer put forth by the defendants, including the offer regarding costs, without reservation. It is my view that Rule 37B does not confer discretion on the court to set aside an agreement that has been entered into between the parties regarding costs.

…

[33]         The rule in Buttar has been consistently applied in this Court and appears determinative of this issue.

[34]         Buttar and cases following it did not address Rule 9-1(4) as it relates to an accepted settlement that addresses costs. Rule 9-1(4) states:

(4)        The court may consider an offer to settle when exercising the court’s discretion in relation to costs.

[35]         Buttar held that the Court does not possess discretion to vary costs where a formal offer to settle, specifically addressing costs, has been accepted. If, in such circumstances, the Court is not in a position to exercise discretion in relation to costs, Rule 9-1(4) is of no application.

[36]         The rule in Buttar is applicable to the defendant’s application in this case. The plaintiff’s offer to settle, accepted by the defendant, created an agreement between the parties. This agreement is not subject to the Court’s discretion as to costs. In my view, the purpose of the rules would be frustrated if a party was free to accept an offer, clear and unambiguous on its face, and then move to invoke the Court’s discretion to add or vary terms to substantially rewrite the agreement reached by the parties.

As recently discussed, when a party is on the losing end of a lawsuit in the BC Supreme Court they usually have to pay the winning sides costs.  If the successful party beat a pre-trial formal settlement offer the Court has the discretion of awarding double costs.  Reasons for judgement were released this week considering an application for double costs where a very modest formal offer was made prior to trial.

In today’s case (Brooks v. Gilchirst) the Plaintiff was involved in two motor vehicle incidents.  She sued for damages and both claims were heard at the same time.  ICBC disputed the allegation that a collision took place in the first incident.  Prior to trial ICBC made a $1 formal settlement offer.  The Plaintiff rejected this offer and went to trial.  Mr. Justice Sigurdson dismissed the claim finding that “no collision” took place.

ICBC applied for double costs.  The Plaintiff opposed arguing that the nominal offer should not trigger increased costs.  Mr. Justice Sidgurson agreed that while this was typically the case, in circumstances where an ‘extremely weak‘ case proceeds to trial double costs could be awarded in the face of a formal settlement offer.   In reaching this result the Court provided the following reasons:

[16]         In terms of the relationship between the terms of settlement offered and the final judgment of the court, the offer was better than the result, but the offer was only for the sum of $1 plus disbursements.  Ordinarily I would think that a nominal offer of one dollar may not attract orders for double costs but I know that in some cases even nominal offers may attract orders of double costs.  See for example MacKinlay v. MacKinlay Estate, 2008 BCSC 1570; Ludwig v. Bos, 2010 BCSC 695.

[17]         This is a case where there had been expenditures on medical and expert reports.  I think that where it becomes clear that liability will be extremely difficult to establish a nominal offer that has the effect of allowing the plaintiff to recover disbursements and avoid liability for the other party’s disbursements may nevertheless be a substantial offer.

[18]         In considering whether the offer ought reasonably to have been accepted, I think it was quite clear that the plaintiff’s original theory that she had been sideswiped as a result of the collision involving the other two adjacent cars was not maintainable once each side had filed their expert reports.  This was not merely a case where the plaintiff had a claim that was difficult to prove at trial; this was a unique case where on the evidence available to her before trial the plaintiff should have realized that she did not have a realistic position on liability…

[23]         In the circumstances, I think that the ICBC defendants should be awarded costs with respect to the main action.  I have estimated the main action consumed 90% of the time at trial.  The defendants were clearly successful and, in my view, it is not an appropriate order for each side to bear its own costs.

[24]         In terms of whether I should award double costs, I think that, in exercising my discretion, the offer reasonably ought to have been accepted in the days prior to trial.  Although the offer was modest, the circumstances at that time were clear that her case was extremely weak, she would have avoided liability for disbursements, and in fact recovered the disbursements she had incurred.

[25]         I award double costs for the period after two days prior to trial.

There have been many cases dealing with “the relative financial circumstances of the parties” focussing on whether a Defendant is insured in deciding the costs consequences after trials with formal settlement offers. (The BC Court of Appeal weighed in on this issue earlier this year deciding insurance can in fact be considered).  There have not, however, been many cases dealing with the Plaintiff’s finances (or lack thereof) as a compelling circumstance.  This overdue issue was addressed earlier this week by the BC Supreme Court, Victoria Registry.

In today’s case (Dickson v. ICBC) the Plaintiff was injured in a bicycle accident involving an unknown motorist.  He sued ICBC under s. 24 of the Insurance (Vehicle) Act.  ICBC denied fault on behalf of the unknown driver.  Prior to trial ICBC offered to settle the issue of fault on a 50/50 basis.  The plaintiff rejected this offer and went to trial where Madam Justice Russell found both parties equally at fault.

Typically, when ICBC matches or beats their formal offer at trial, ICBC becomes entitled to post offer costs.  Madam Justice Russell refused to follow this usual course, however, noting that the Plaintiff’s financial circumstances put the plaintiff at a ‘serious disadvantage‘.  In awarding the Plaintiff costs to the time of the offer and depriving both parties of post offer costs Madam Justice Russell held as follows:

[13]    It is my view that the plaintiff’s position is one of serious disadvantage as a result of the accident.  I recall that he was unable to work for a long period of time as a result of his injury and was still unable to return to work by the time of the hearing.

[14]    The plaintiff is the sole support of his family and either had run out of disability benefits or was close to the end of those benefits by the time of the summary trial…

[17]    I view the financial circumstances of the plaintiff as compelling on the issue of whether double costs should be awarded.

[18]    In Osooli-Talesh v. Emami, 2008 BCSC 1749, the offer to settle matched the judgment achieved and Sigurdson, J. concluded that the court may award payment of double costs where an offer to settle matches the results at trial.  However, he went on to consider all the factors listed in Rule 37B.  He determined that the parties had divided success and should therefore bear their own costs.

[19]    I am guided by that decision and consider it apposite to the circumstances of this case.

[20]    I award costs of this case to the plaintiff to the date of the receipt of the defendants’ offer to settle and order both parties to bear their own costs thereafter.

As I’ve previously written, the new formal settlement offer rule (Rule 9) reads almost identically to the former Rule 37B.   Under the former rules BC Courts were reluctant to have formal settlement offers trigger costs consequences following trial where the offer was open for acceptance for a short period of time.  Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, reaching a similar result under Rule 9.

In today’s case (Hunter v. Anderson) the Plaintiff sued for injuries as a result of a slip and fall incident.  In the course of the lawsuit the Defendant made a formal settlement offer for $25,000.  This offer was made one week before trial and was left open for acceptance for only 3 days.  The Plaintiff declined the offer and proceeded to trial.  After trial the Defendant was found 25% at fault for the fall and the Plaintiff was awarded just over $9,000 in damages.

The Defendant asked to be awarded their costs from the time of the offer onward.  Mr. Justice Cullen refused to do so finding that the offer was not alive for a reasonable period of time and split the costs the parties were entitled to.   In reaching this verdict the Court provided the following reasons:

[14] In dealing with the first issue under Rule 9-1(6), whether the offer was one that might reasonably have been accepted “the analysis is not one of hindsight, once the final result is known”.  See A.E. v. D.W.J. 2009 BCSC 505; Bailey v. Jang, 2008 BCSC 1372.  In the present case, the operative offer of the defendant was made relatively late in the day and was essentially premised on the defendant having no potential liability, but simply to offset the costs of a potential trial…

[15]         In my view, on balance, in the circumstances, despite the ultimate result, given the short duration of the offer, the fact that it was not based on an assessment of the liability of the defendant, it could not be characterized as one which ought reasonably to have been accepted.  I note that on March 9, 2010, when the offer was made, the defendant had not yet provided her fourth and final list of documents which was provided on March 10^th.  As well, there was ongoing disclosure of the plaintiff’s documents.

[16]         In addition I note that in Bailey v. Jang, supra, Hinkson J. (as he then was) considered a seven day period “a reasonable time after which the plaintiff could consider (the defendant’s) offer” for purposes of awarding double costs under the old Rule 37B(6) after the expiry of that period…

Although the defendant tendered her offer on March 9^th, six days before trial, it was in the context of ongoing disclosure and was left open, effectively, for only three days.  The plaintiff did not have the benefit of a great deal of time to assess the defendant’s offer.  In the context of Bailey v. Jang, Hinkson J. considered a seven day period “a reasonable period of time after which the plaintiff could consider their offer”.  I conclude a similar period is appropriate to impute in the circumstances of this case where the plaintiff was deprived of the ability to accept the defendant’s offer after only three days effectively commencing March 10^th.  In light of that factor and the others I have set forth, I award the plaintiff, as indicated, the costs and disbursements up to and including the first two days of trial, and the defendants their costs and disbursements for the six days comprising the balance of the trial.

A further decision dealing with the consequences of formal settlement offers under the New BC Supreme Court Civil Rules was released today by the BC Supreme Court, New Westminster Registry.

In today’s case (Gregory v. ICBC) the Plaintiff was injured in a BC motor vehicle collision.  Prior to trial ICBC made a formal settlement offer of $164,000.  The Plaintiff rejected this offer and at trial was awarded just over $131,000.

ICBC brought an application seeking costs or double costs from the date of the offer onward.  Madam Justice Kloegman agreed that the Plaintiff ought to have accepted the formal settlement offer and accordingly deprived her of her costs and disbursements for the trial and awarded ICBC their costs and disbursements for steps taken shortly after delivery of the formal settlement offer.

In reaching this result the Court noted that Rule 9 (the New Formal Settlement offer rule) should be treated similarly to the old Rule 37B.  Specifically Madam Justice Kloegman noted that “The parties agree that it is likely that the new Supreme Court Rules apply to this application and, in any event, very little turns on whether or not the old or new Rules apply. ”

While ICBC was awarded post offer costs, they were not awarded double costs.  In reaching this decision the Court noted that ICBC’s financial ability to defend a lawsuit was “much greater than the (plaintiff’s) ability to prosecute” and that this factor must be taken into account in exercising judicial discretion under Rule 9.   In considering this factor Madam Justice Kloegman stated as follows “I will not order double costs to the defendant, which would be about $50,000, because the impact on the financial circumstances of the plaintiff and on the amount of her award at trial would be grievous. “

The first judgement that I’m aware of dealing with the new formal settlement offer rule (Rule 9) was released today by the BC Supreme Court.

In today’s case (Demarzo v. Michaud) the Plaintiff was injured in a BC motor vehicle collision.  He went to trial and was awarded $356,000 in total damages.  (you can click here to read my post summarizing the trial judgement).  Prior to trial the Plaintiff made a formal settlement offer to resolve the claim for $150,000.

Having comfortably beat his pre-trial settlement offer the Plaintiff asked the Court to exercise its discretion and award double costs under Rule 9-1 (Rule 9 reads almost identically to the old Rule 37B.  You can access my archived posts dealing with Rule 37B by clicking here).

Prior to trial the Plaintiff obtained various independent medical reports.  The Plaintiff served these on the Defendant in compliance with the rules of Court but not as quickly as possible.  In an interesting application of the new rule Mr. Justice Brown held that double costs should not be ordered if a party failed to make “timely disclosure of documents“.  Specifically the Court held as follows in refusing to award the Plaintiff double costs:

[18]         The main purpose of Rule 9-1 is to encourage parties to settle, early if possible. But the purposes of the Rule, and modern practice, assumes timely disclosure of documents and reports that would significantly affect a party’s ability to make a rational assessment of the litigation risks they face. While it is true the Rules of Court provide parties means to discover facts and the parties can conduct their own investigations to assess litigation risks, in my view it is also incumbent on a party expecting an order for double costs to show timely disclosure of documents and reports that would have significantly affected the other party’s assessment of whether the offer ought reasonably to be accepted.

[19]         Further, while evidence at trial produced a judgment that was more than double what the plaintiff offered to settle for, I note that the plaintiff’s credibility, tested on cross-examination, and the specialist reports served in October 2009 were important factors in the damages awarded.

[20]         Considering these factors, I find an award of double costs is not in keeping with the purposes of the Rule and I decline an award.

When a personal injury claim goes to trial there is a winner and a loser.  Who the winner is, however, is not always apparent by reading the Court judgement.  To know who the winner really is you have to know the behind the scenes formal settlement offers.

Reasons for judgment were released today demonstrating, yet again, the steep costs Plaintiffs can face when on the losing end of a BC personal injury lawsuit.

In today’s case (Smagh v. Bumbrah) the Plaintiff was injured in a motor vehicle collision.  She sued for damages.  Before trial the Defendants made a formal settlement offer for $20,000.  The Plaintiff rejected this offer and went to trial.  After 10 days of trial a BC Jury awarded $2,200.  The Defendant was awarded ‘costs’ from the date of the formal offer onward.  (You can click here to read my summary of the costs judgement).

On the face of it the Plaintiff clearly lost because she was awarded far less by the Jury than the settlement offer.  But the full extent of the loss is far greater than the difference between $20,000 and $2,200.  The Plaintiff actually ended up owing the Defendant money for this result.  How much money?  Approximately $40,000.

You can read today’s judgment in full to see the types of items a losing litigant can end up owing the winning side to a lawsuit and to see just how quickly a ‘costs’ award can add up.

Today’s case helps illustrate an important point I’ve previously stressed.  Before a case goes to trial it is important to fully consider the potential risks and rewards including the significant toll a costs award can have.  Without knowing and weighing these risks it is very difficult to make an informed choice about whether to settle or proceed to trial.