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Over $250,000 Awarded for Serious Injuries in ICBC Claim

Written by admin on February 12, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Head Injury Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, Uncategorized. 66 Comments on Over $250,000 Awarded for Serious Injuries in ICBC Claim

Reasons for judgement were released today (Tchao v. Bourdon) in an ICBC Injury Tort Claim awarding $276,504.46 in total damages as a result of injuries suffered in a 2004 collision in the Lower Mainland.
I am still in trial still and only have time for bare bones reporting. In this case it appears the Plaintiff suffered significant injuries including a mild traumatic brain injury, significant soft tissue injuries, PTSD, depression and a lumbar facet syndrome. The court’s key analysis of injuries is set out below:

[73] I am satisfied that, as a result of the accident at issue in this action, the plaintiff suffered a knee injury that recovered within approximately a month, a significant soft tissue injury to the neck and upper back that recovered within approximately seven months but which has left the plaintiff more vulnerable to degenerative changes in the neck, a concussion with post-concussion syndrome that still causes headaches once or twice a week, but is likely to resolve, a mild post-traumatic stress disorder that is resolving but remains problematic, and a depressed mood.

[74] Counsel for the defendant suggested that the plaintiff did not suffer a concussion because there was no clear evidence of loss of memory. There is, however, evidence of a loss of awareness, a blow to the head, and ongoing symptoms consistent with post-concussion syndrome. Dr. Duncan, the treating GP, Dr. Bozek, the treating neurologist, and Dr. Hunt were all of the view that Mr. Tchao indeed suffered a concussion and post-concussion syndrome, and I find that conclusion to be consistent with all of the evidence.

[75] That brings us to the most serious of Mr. Tchao’s ongoing difficulties, his lower back.

[76] Counsel for the defendant conceded that Mr. Tchao suffered a soft tissue injury to his lower back in the accident, but submitted that Mr. Tchao had recovered from that injury by some point in 2005, and that his ongoing symptoms relate to his pre-existing degenerative condition. He based this argument on the absence from Dr. Duncan’s clinical record of any notes of complaints from the plaintiff about his lower back, as opposed to his upper back and neck, in the relevant period. I observe, however, that throughout that period, the plaintiff was attending at CBI undergoing rehabilitation therapy for his lower back, and I do not find it surprising that during the course of that treatment, he did not raise lower back issues with his GP.

[77] Defendant’s counsel also urged me to treat Dr. Hunt’s opinion with great caution because of his apparent advocacy. I find that the passages defence counsel brought to my attention in this regard are more consistent with a certain degree of impatience and curmudgeonliness on the part of a very senior and experienced surgeon, than with improper advocacy. There are nevertheless aspects of Dr. Hunt’s opinion that I am not prepared to accept. In particular, I do not accept his suggestion that Mr. Tchao possibly suffered a hiatus hernia in the accident, nor do I accept his opinion that Mr. Tchao may require surgery in the future as a result of the motor vehicle accident – although to be fair, Dr. Hunt raised these as possibilities, not probabilities.

[78] I do accept, however, Dr. Hunt’s opinion that Mr. Tchao’s pre-existing degenerative condition made him more vulnerable to injury in the motor vehicle accident (no expert disagrees with this), and that as a result of the effect of the accident on Mr. Tchao’s pre-existing condition, Mr. Tchao suffers from bilateral lumbar facet syndrome. This is supported by Dr. Purtzki’s findings of “predominately mechanical back pain due to a facet joint dysfunction”, and by Dr. Adrian’s impression of mechanical low back pain with radicular features. None of the pre-accident investigations demonstrated any facet joint issues.

[79] I observe further that regardless of how one characterizes the effect of the accident on Mr. Tchao’s pre-existing condition, there is no question that the accident aggravated it as noted by the defence expert, Dr. Arthur. There is also no doubt that, as reported by both Dr. Arthur and by Dr. Hunt, the plaintiff’s prognosis remains guarded.

[80] That the accident has had a significant and lasting impact on Mr. Tchao is also consistent with his own evidence. This brings me to the issue of his credibility. In general, I found the plaintiff to be a believable witness. I observed nothing that would suggest malingering or exaggeration on his part, and there is nothing in any of the medical records or reports, including those submitted by the defence, that would suggest that I may be mistaken in my impression.

[81] As previously noted, the CBI discharge report considered that his perceived functional ability was the same as his actual, demonstrated ability, and that there was maximal effort on his behalf. Ms. Jodi Fischer, who carried out a Functional/Work Capacity Evaluation, administered a number of tests from which she was able to conclude that Mr. Tchao was devoting his best efforts to the evaluation, and was reliably reporting his levels of pain and disability. There were no non-organic findings. I found Ms. Fischer to be a compelling witness.

[82] In these circumstances, I conclude that, as a result of the effect of this accident on his pre-existing degenerative condition, the plaintiff has suffered a significant injury in the form of a lumbar facet syndrome that causes him ongoing pain and disability, and which has left him with a guarded prognosis.

[83] There was very little evidence concerning what lower back problems the plaintiff would likely have suffered in the future as a result of his pre-existing degenerative condition, in the absence of the accident. Dr. Arthur, the defendant’s expert in orthopaedic surgery, was silent on this point. I nevertheless find that, as conceded by Dr. Hunt, problems of the sort that plagued Mr. Tchao before the accident would likely have recurred in the future. There is no evidence, however, that they would have been as disabling as the condition in which Mr. Tchao now finds himself. As I will explore further below, he was able to carry on with physical labour at his jobs at Safeway, Nexus and The Blox in the past, but is no longer able to do physical labour of any kind. No expert witness, including Dr. Arthur, has suggested that Mr. Tchao is presently capable of more than light and sedentary duties.

Damages were assessed as follows:

D. CONCLUSION

[127] I find the defendant 100% liable for the plaintiff’s damages. Those damages are assessed as follows:

non-pecuniary damages: $70,000.00

past loss of income: $67,500.00

loss of income earning capacity: $120,000.00

future care costs: $17,317.00

special damages: $1,687.46

Total: $276,504.46

$40,000 Pain and Suffering Awarded in ICBC Injury Claim Involivng Soft Tissue Injuries

Written by admin on February 10, 2009. Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases. 49 Comments on $40,000 Pain and Suffering Awarded in ICBC Injury Claim Involivng Soft Tissue Injuries

I am in trial this week and am a little short on time so this ICBC Injury Law update will be a little light on my desired level of analysis.
Reasons for judgement were released today (Lai v. Wang) compensating a Plaintiff for injuries sustained in a 2004 motor vehicle collision in Vancouver, BC.
In this ICBC Claim the Court found that the Plaintiff sustained various soft tissue injuries which plateaued after several months leaving the Plaintiff with occasional pain. The Court’s key findings and assessment of damages can be found at paragraphs 34-38 which I reproduce for your convenience:

[34] I am of the view that the plaintiff has suffered significant, but not disabling, pain, which should largely be compensated in damages for loss of enjoyment of life. I expect it will continue for some time into the future on an annoying, but not disabling basis, but that he will likely recover as Dr. Fenton suggests. The cases which seem to me to offer the best guidance are Hubbard v. Saunders, 2008 BCSC 486, and Jackson v. Gow, 2001 BCSC 54. I am of the view that $40,000 is an appropriate amount for these damages. I should add that there was some evidence of pre-accident complaints of pain requiring treatment. I do not think it was demonstrated that any of those problems were aggravated in a sense that required them to be taken into account.

[35] I do not accept the mathematics offered by the plaintiff for past income loss. I accept that the plaintiff may have lost some work due to pain while he worked at the Face Shop, but do not accept that he was disabled in relation to the jobs he chose to do. I estimate the actual interference with work he was available for and willing to do at $1000.

[36] With respect to loss of future earning capacity, I accept that the injuries the plaintiff suffered may affect his income earning capacity on the basis outlined in Palmer v. Goodall, [1991] 53 B.C.L.R. (2d) 44 (C.A.):

…Because it is impairment that is being redressed, even a plaintiff who is apparently going to be able to earn as much as he could have earned if not injured or who, with retraining, on the balance of probabilities will be able to do so, is entitled to some compensation for the impairment. He is entitled to it because for the rest of his life some occupations will be closed to him and it is impossible to say that over his working life the impairment will not harm his income ability.

[37] Mr. Lai is not disabled from the kind of work he has chosen in the past to do, and the kind of work he expects to qualify for in the future. He does, nevertheless, have a level of pain that Dr. Condon considers chronic and Dr. Fenton believes will ultimately resolve, particularly if the plaintiff works through the pain in the short term. I think it likely that the plaintiff will ultimately reach a point where he is only occasionally troubled by pain. When that may be is unknowable. In the meantime, although the plaintiff is unlikely, in any event, to work in fields imposing significant physical demands, he will suffer a loss of capacity to do such work, for which he is entitled to some compensation. I fix those damages at $25,000.

[38] The plaintiff is entitled to special claimed damages for sums expended to date, which I gather are agreed at $5193. I do not think the plaintiff can be faulted for the amounts spent in trying to obtain relief from the consequences of the accident to the date of trial. I am not satisfied that the $1200 for the Taiwan airplane ticket is justified and deny that claim. I accept that the plaintiff will require occasional prescriptions and therapy in the future, although such an award should be modest. I allow $1000 for this. I reject, as speculative, the pulse therapy suggested by Dr. Condon.

Intersections, Left Hand Turns and ICBC Injury Claims

Written by admin on February 5, 2009. Posted in ICBC Liability (fault) Cases, Uncategorized. 56 Comments on Intersections, Left Hand Turns and ICBC Injury Claims

(Note: The case discussed in this post was overturned by the BC Court of Appeal om May 3, 2010 with a 75% / 25% split of liability. You can click here to read the BC Court of Appeal’s judgement)
One of the toughest types of ICBC injury cases to predict the outcome of are those involving the issue of fault when 2 vehicles collide in an intersection. Even some of the most seasoned ICBC Injury Claims Lawyers can’t predict the outcome of a case where a left hand turning driver on an amber light is stuck by a through driver. There are plenty of cases dealing with such crashes and the results vary from finding the left turning vehicle 100% at fault to those finding the through driver 100% and every imaginable split in between.
Reasons for judgement were released today dealing with an intersection crash finding a left hand turning vehicle 100% responsible for an intersection crash. In today’s case (Salaam v. Abramovic) the Plaintiff was turning left at the intersection of Scott Road and 120th Street in Surrey, BC. This intersection is controlled by a stop sign. As the Plaintiff was turning left her vehicle was struck by the Defendant’s. Madam Justice Gropper made the following analysis in finding the Plaintiff 100% at fault:

[40] The essence of the plaintiff’s position is that the defendant should have foreseen what the plaintiff would do: he knew that the plaintiff intended to make a left hand turn, crossing the northbound traffic and entering the southbound lane to Scott Rd.; he knew that her attention was to her right for approaching southbound traffic. He should have known that the plaintiff was moving slowly across the northbound lanes and would continue to do so despite the presence of the defendant’s vehicle. She argues that the defendant had no reason to assume that she was aware of the defendant’s approach.

[41] The plaintiff relies on the provisions of s. 175(1) of the Act. She says that once she entered the intersection, the defendant’s vehicle had not nor was it approaching so closely that it constituted an immediate hazard. Essentially, when she entered the intersection it was safe to do so and the defendant ought to have yielded the right of way to her.

[42] The plaintiff was the left turning vehicle. It was her obligation, in accordance with s. 174 of the Act, to yield the right of way to the traffic approaching from the opposite direction. The plaintiff did not turn her head to observe whether traffic was approaching. Nor did the plaintiff comply with the provisions of s. 175 of the Act. She did not stop before entering the intersection. The plaintiff did not do anything to ascertain whether there was traffic on the through highway, or whether it was close. She did not proceed with caution, despite driving slowly.

[43] The unassailable fact is that the defendant was there to be seen from 450 feet away from the plaintiff before she entered the intersection.

[44] The plaintiff argues that the defendant had no reason to assume that she was aware of his approach. Putting aside for the moment that was her duty to determine whether there was traffic approaching on the through highway, he was entitled to assume that she did know he was approaching, by hearing him, or to expect that she would actually turn her head to observe approaching traffic.

[45] I agree with the analysis in Pacheco that it was the plaintiff’s obligation, as she wished to make a left turn at the intersection, not to proceed until she could do so safely. The plaintiff did not determine whether her turn could be done safely.

[46] The authorities upon which the plaintiff relies, as well as the provisions of the Act, require, at the very least that all drivers keep a proper lookout.

[47] The dispute between the experts devolves to when the defendant’s approach constituted an immediate hazard to the plaintiff. The defendant’s expert, Mr. Lawrence, describes the defendant becoming an immediate hazard to the plaintiff when she enters the left lane of the northbound traffic. The plaintiff’s expert, Mr. Brown, considers that the plaintiff’s vehicle was an immediate hazard to the defendant when she entered the intersection.

[48] Mr. Brown’s analysis ignores the provisions of ss. 174 and 175 of the Act, which require the left turning vehicle to first stop, and then yield the right of way to traffic approaching so closely that it constitutes an immediate hazard, and then proceed with caution. The plaintiff did none of those things, she did not stop at the stop sign, she did not ascertain whether there was any through traffic, whether such traffic constituted an immediate hazard or not, nor did she proceed with caution. Mr. Brown’s analysis requires the defendant to anticipate that the plaintiff was not following the rules of the road.

[49] Mr. Lawrence considers that the immediate hazard arose when the plaintiff entered the left lane of the northbound traffic. I agree. The plaintiff was driving very slowly and could stop almost immediately. It was reasonable for the defendant to assume that she was aware of his presence and that she would not move into his path. She did. When the defendant honked, the plaintiff stopped. It was the plaintiff’s presence in the defendant’s lane of travel which caused the accident.

[50] The plaintiff did not ascertain whether the defendant was an immediate hazard when she entered the intersection. In all the circumstances, I find that the plaintiff is 100% liable for the collision which occurred.

[51] Therefore, the plaintiff’s claim is dismissed. The defendant shall have his costs.

ICBC Injury Claims and Mitigation of Damages

Written by admin on February 5, 2009. Posted in Uncategorized. 97 Comments on ICBC Injury Claims and Mitigation of Damages

One of the principles of tort law is that of mitigation.
If you are injured through the fault of another you have a duty to take reasonable steps to minimize your losses. For example, if your doctor makes treatment recommendations and you refuse to follow these this can result in a ‘failure to mitigate’ argument by an ICBC Defence Lawyer. If such an argument succeeds the court can reduce the amount of damages according to the severity of the failure to mitigate.
Reasons for judgement were released today discussing and illustrating this principle.e In today’s case (Korosic v. Maitland) the trial judge found that the Plaintiff failed to mitigate her injuries and reduced damages accordingly. The key discussion was set out at paragraphs 122-132 which I reproduce below:

Mitigation

[122] The defendant contended that Ms. Kosoric had a positive duty to mitigate and, in failing to perform the strength and conditioning exercises recommended by her physicians and physiotherapists, she could have reasonably avoided some part of her loss. The defendant agreed that they bear the onus of proof on this issue.

[123] The concept of mitigation was discussed in Graham v. Rodgers, 2001 BCCA 432, 90 B.C.L.R. (3d) 69, leave to appeal to ref’d [2001] S.C.C.A. No. 467. The purpose of mitigation is to limit the recovery of an injured party based on their failure to take reasonable steps to minimize or limit their loss: see para. 35. As the defendant submits in their argument, a plaintiff has a positive duty to mitigate in personal injury actions; however, if a defendant argues a plaintiff may have reasonably avoided some of the loss, they bear the onus of proof: see para. 35.

[124] In situations where a plaintiff has not followed a course of recommended medical treatment, a defendant must prove two things: the plaintiff acted unreasonably in eschewing the recommended treatment, and the extent, if any, that the plaintiff’s damages would have been reduced had they acted reasonably: Chiu v. Chiu, 2002 BCCA 618, 8 B.C.L.R. (4th) 227 at para. 57, citing Janiak v. Ippolito, [1985] 1 S.C.R. 146. In Chiu, the court of appeal overturned the trial judge’s decision to reduce damages by 10% on account of the plaintiff’s failure to mitigate his damages. In overturning this part of the decision, the court stated that the defendant did not pursue cross examination of the plaintiff with respect to his failure to engage in counselling, nor did the defendant adduce any medical evidence demonstrating the consequences of the failure, on the part of the plaintiff, to obtain more counselling. There was simply no evidence indicating the effect of counselling and whether it would have accelerated the plaintiff’s recovery or had other positive impacts.

[125] Conversely, in Briglio v. Faulkner, 1999 BCCA 361, 69 B.C.L.R. (2d) 122, rev’g , in part, 1996 Carswell BC 1818, the Court of Appeal upheld the trial judge’s decision to reduce the damages by 10%, as a result of the plaintiff’s failure to engage in a recommended exercise program. At trial, the judge accepted medical evidence which stated that a structured exercise program would have assisted in the improvement of the plaintiff’s fibromyalgia condition. The plaintiff’s failure to engage in such exercise “likely had some negative effect on her condition”: trial decision at para. 148.

[126] In Kero v. Love, 90 B.C.L.R. (2d) 299, CarswellBC 179 (C.A.), the Court of Appeal upheld a jury’s decision to deduct a 25% contingency ($40,000) from a damages award. The court found that it was reasonable for the jury to make such a decision in light of the plaintiff’s failure to follow a prescribed exercise regime or seek alternative employment which would have been less stressful on his back.

[127] In the instant case, the defendant submitted that Ms. Kosoric failed to mitigate her loss through her failure to follow and adhere to an exercise routine, as outlined by her physicians and physiotherapists. The defendant further argued that Ms. Kosoric was continually reminded of the need to continue with an exercise program and the likely (positive) effects of such a program. Ms. Kosoric acknowledged, in cross examination, that her physiotherapist had told her that her spine strength could improve through exercise, which would assist her college studies with less disruption. Furthermore, Drs. Mitha and le Nobel both instructed Ms. Kosoric, on a number of occasions, to engage in regular strength and conditioning exercises, as it was important for her recovery.

[128] Both physiotherapists who submitted reports for trial also made similar recommendations. In his report, Mr. Rizzardo noted that he instructed Ms. Kosoric to adhere to an exercise program “constantly”, even when she was feeling “close to normal”. Similarly, Ms. Guglielmini stated that Ms. Kosoric should continue with an exercise programme, involving three sessions per week over a 12 to 15 week period.

[129] In the period following the Accident, I acknowledge Ms. Kosoric’s life was difficult, in the sense that she had experienced a traumatic incident that had mental and physical impacts, her mother was diagnosed with cancer and she commenced a difficult and demanding educational program. However, this does not absolve her of her duty to take reasonable steps to minimize her loss, particularly in light of the fact that the recommendation was conservative and would likely lead to reduced difficulties at school, work and in life generally. I note that when Ms. Kosoric did perform exercise, there was no aggravation of her injuries nor did it cause additional pain.

[130] There is evidence that Ms. Kosoric did perform some exercise since the Accident, however, the evidence also demonstrates this was done infrequently over the past five years. In her evidence, Ms. Kosoric admitted that the recommended exercise program was not a high priority for her during this period.

[131] Based on the evidence, I conclude that following a regular exercise programme would have had positive effects on Ms. Kosoric’s symptoms. Since the medical evidence does not state the precise effectiveness of exercise, I must therefore determine what role this would have played in improving her symptoms: see Briglio, trial decision, at para. 149.

[132] I will take into account the plaintiff’s failure to adhere to an exercise routine in my assessment of non-pecuniary damages.

Can Jaywalkers Injured by a Vehicle Seek Pain and Suffering in an ICBC Claim?

Written by admin on February 3, 2009. Posted in ICBC Liability (fault) Cases, Uncategorized. 39 Comments on Can Jaywalkers Injured by a Vehicle Seek Pain and Suffering in an ICBC Claim?

If you are jaywalking and are injured in a BC Car Accident, can you make a claim for pain and suffering? The answer is it depends on the circumstances.
Reasons for judgment were released today by the BC Supreme Court illustrating the principle that simply because someone is in breach of the law at the time of a car crash they can still succeed in advancing a negligence claim (a claim for pain and suffering and other damages against another party).
In today’s case (Lemesurier v. McConnachie) the Plaintiff was injured when she was struck by a vehicle as she was crossing Victoria Street in Trail, BC. At the time she was jaywalking. For this she was found at fault for the collision. However, the court also found that the motorist that struck the Plaintiff at fault concluding that the motorist was not driving with appropriate caution at the time of the collision. The court made the following analyisis in finding the jaywalker 60% at fault for the crash and the motorist 40% at fault:

[21] Where, however, there are circumstances known to a motor vehicle operator, that render questionable the presumption that the rules of the road will be respected by pedestrians, the exercise of due care is not met by behaving in accordance with the presumption. One cannot be deemed to presume facts at odds with known circumstances. “Due care” on the night of this accident included the known, and (by the plaintiff), specifically observed circumstance that there were pedestrians about and, that given the nature of the event, they might not be taking all due care for their own safety. This required an extra degree of caution in the circumstances. The plaintiff acknowledged this herself in turning into the centre lane to avoid pedestrians.

[22] The question then becomes whether the plaintiff has proved that the plaintiff’s want of due care, applying s. 181, contributed to the collision. Liston v. Streiger, CA 18770, CA19363 Vancouver Registry (June 25, 1996) is a case in which the Court of Appeal apportioned negligence 60-40 against a pedestrian who was struck in Penticton during the “Peach Festival” in a somewhat comparable atmosphere, in that the exercise of due care included adjusting ones’ driving habits to accommodate the possibility of careless behaviour by pedestrians. There the facts, as found by the trial judge and accepted by the Court of Appeal, included the plaintiff “running barefoot across a busy street at night, in a poorly lit area in a state of intoxication… she glanced into the curb lane and proceeded to run into it … .”

[23] The defendant’s position is that apart from any discussion of legal presumptions and duties, the effect of the evidence is that the plaintiff simply ran into the defendant’s car in circumstances where the defendant had no opportunity to avoid striking her. The widths of the lanes established in evidence suggest that the distance from the curb to the point of impact is not great and could be traversed in a matter of seconds by a person who was running. The defence submits that the plaintiff’s evidence that she simply did not see the defendant until she was upon her may be attributed to the probability that the plaintiff was running.

[24] The useful evidence is, again, that of the defence witness Ms. Howes. Apart from establishing that the collision occurred while the traffic signals were against the plaintiff, and that the plaintiff was not in the crosswalk, Ms. Howes’ evidence is that she saw a large group of people crossing the road from her vantage in the intersection. Some were running. Her evidence is that the plaintiff was among the last of that group attempting to cross. Ms. Howes saw shadows crossing the road and had enough time to form the impression that someone was going to be hit because approaching cars were not slowing down.

[25] I accept that Ms. Howes probably saw the plaintiff running. It may well be, as the defence assets that she ran right in front of the car leaving the defendant very little time to react to her specific presence. This does not, however, explain how the defendant could approach the intersection without slowing or without the utmost caution given that a large group of people had proceeded to cross moments before contrary to the traffic signal. The effect of Ms. Howes’ evidence, which I accept, is that the presence of people on the road was manifest, and that the defendant should have been alert to that fact. She should not, in view of the circumstances, have been “surprised” by pedestrians behaving as the plaintiff did.

[26] I am of the view that the plaintiff should bear the larger portion of the responsibility for what happened to her. With respect to the division of liability, I find it difficult to distinguish the relative degrees of responsibility here from those established in Liston (supra). Accordingly, I divide responsibility for what occurred 60% to the plaintiff and 40% to the defendant.

This case goes to show that simply because one party is breaking the law at the time of a BC car crash another party can still be (partially or wholly) responsible. Each case turns on its own circumstances and a breach of a law of one party will not excuse careless driving by another when it comes to the law of negligence (the law that governs ICBC claims for pain and suffering).

$115,000 Awarded in ICBC Low Velocity Impact (LVI) Claim

Written by admin on February 3, 2009. Posted in ICBC Chronic Pain Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

(Please note the case discussed in this post was overturned by the BC Court of Appeal in reasons for judgment released on September 21, 2010. You can go to my September 2010 archives to read my summary of the BC Court of Appeal Decision)
Reasons for judgment were released today by the BC Supreme Court (Mariano v. Campbell) awarding a Plaintiff just over $115,000 as a result of injuries sustained in a 2006 rear end collision.
This was an ICBC Claim that apparently fit into ICBC’s Low Velocity Impact (LVI) Program. The vehicles sustained modest damage and the ICBC Claims Lawyer defending the Claim argued the Low Velocity Impact defence. The details of this are set out in paragraphs 33-41 of the judgment.

[33] The defendant says the accident was a low velocity impact claim. The cost of repair for the Ms. Mariano’s 2005 Ford Escape was $1,712.96. The cost of repair to Ms. Campbell’s 2000 Honda Civic was $3,714.07.

[34] The defendant argues that Ms. Mariano’s injuries should be consistent with a modest low impact accident and anything more than modest injuries from the accident are an unreasonable consequence. Relying on Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at paras. 11-18, the defence argues that the injuries alleged are not a reasonably foreseeable consequence of the minor motor vehicle accident.

[35] Ms. Campbell was called by the defence presumably to testify that the collision was only a minor one. However even Ms. Campbell admitted to sustaining whiplash injuries.

[36] Ms. Campbell was stopped in gridlocked traffic waiting for the traffic light to change. When she saw the light turn green and traffic ahead of her starting to move, Ms. Campbell starting moving her vehicle. When Ms. Mariano’s vehicle suddenly stopped, Ms. Campbell did not apply her brakes before she rear-ended the Ford. When she got out of her vehicle, Ms. Campbell saw a stalled vehicle, one or two vehicles in front of her.

[37] Ms. Campbell could not estimate the speed of her vehicle at the time of impact but defence relies on her evidence that another car could not have fitted in between her vehicle and Ms. Mariano’s vehicle. However, Ms. Campbell said that on the impact, she immediately felt pain in her neck, the middle of her back, and her right arm. She went into shock and her whiplash injuries took three months to resolve.

[38] The defendant tried unsuccessfully to attack Ms. Mariano’s credibility and argues that because of the minimal impact, Ms. Mariano can only have suffered minimal injuries. However I find Ms. Mariano a very credible witness. She continues to work despite her symptoms. The pain in her neck and shoulders prevents her from working the way she used to work, and from doing the things she used to enjoy doing. She was unable to buy her sons a big pumpkin for Halloween as she had always done before because she is now unable to carry a big pumpkin. Ms. Mariano became quite visibly distressed when she described the activities she can no longer participate in with her children because of her injuries or because she is now simply too tired at the end of the work day to do anything else.

[39] The defendant points to Ms. Mariano’s application for mortgage life and disability insurance where she filled in “March 2006” as the “date of the last episode” of neck pain and that Dr. Darby wrote a note to the insurance company indicating that Ms. Mariano had fully recovered from the accident with no complications or sequelae.

[40] The statements may not have been entirely accurate but it was understandable. Ms. Mariano tried to put herself in the best light she could so that she could obtain, as she did before the accident, mortgage disability insurance with no exclusions. The defendant’s negligence caused the insurance company to dramatically limit the mortgage disability insurance available to Ms. Mariano through no fault of her own. The defendant should not be heard to be complaining too loudly.

[41] Terry Watson, an estimator for the Insurance Corporation of British Columbia, testified that neither Ms. Mariano’s vehicle nor Ms. Campbell’s vehicle sustained structural damage. However, the hood of Ms. Campbell’s vehicle collapsed and slid under the Ford Escape, striking the spare tire underneath. Mr. Watson agreed that that the impact of the collision was likely not absorbed by the bumpers.

The Defendants ICBC Claims Lawyer went on to argue that minimal damages should be paid because more severe injuries are not reasonably foreseeable from a minor or modest collision.
Madame Justice Loo rejected the defence arguments and accepted that the Plaintiff was indeed injured in this collision. The court found that the Plaintiff suffered soft tissue injuries which have resulted in chronic pain and that there was a chance that these symptoms would linger in the future.
Damages were awarded as follows:
1. Non Pecuniary Damages: $30,000
2. Past Wage Loss: $45,428.91
3. Loss of Earning Capacity: $15,000
4. Special Damages: $574.16
5. Cost of future care: $1,000
6. cost of re-training: $23,307

ICBC Expert Rejected in Injury Claim, $100,000 Awarded for Myofacial Pain

Written by admin on January 31, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 115 Comments on ICBC Expert Rejected in Injury Claim, $100,000 Awarded for Myofacial Pain

Reasons for judgement were released today by the BC Supreme Court awarding a 22 year old Plaintiff $50,000 for pain and suffering and a further $50,000 for loss of earning capacity as a result of soft tissue injuries.
The court’s findings of injuries are summarized at paragraphs 45-46 which stated as follows:

[45] In the final analysis, I am unable to place much weight to Dr. Schweigel’s report. I accept Dr. Anton’s evidence that as a result of the accident, the plaintiff has suffered soft tissue injuries of the cervical and thoracic spine and shoulder girdle, which in turn have given rise to a myofascial pain syndrome.

[46] I accept his evidence that while there is some room for improvement, the plaintiff will likely suffer intermittent headaches and neck and upper back pain indefinitely. She must be careful to modify her activities and avoid bending, leaning, heavy lifting or repetitive lifting—particularly those involving sustained postures of the neck and upper arms or repetitive use of the upper arms—which will exacerbate her pain.

What interested me most in this judgement was the judges discussion weighing the Plaintiff’s medical evidence against the evidence tendered by the Defendant. The Defendant relied on Dr. Schweigel, a senior orthopaedic surgeon who is often retained by ICBC to review injury claims and often disagrees with Plaintiff’s physicians regarding the long term prognosis of soft tissue injuries. In today’s case the court largely rejected his opinion and offered the following analysis:

[36] The defence relies heavily on the evidence of Dr. Schweigel, an orthopaedic surgeon who examined the plaintiff in January 2008. Dr. Schweigel concluded the plaintiff suffered no more than a very minor soft tissue injury to the cervical and upper back area.

[37] In Dr. Schweigel’s opinion, cervical soft tissue injuries may be classified as either minor, moderate or severe, depending on the presence of various findings and complaints. In his opinion, a cervical soft tissue injury must be in the moderate to severe category before it will give rise to a chronic myofascial pain syndrome.

[38] In his opinion, before being diagnosed with a moderate to severe soft tissue injury the patient must present with a constellation of at least three complaints including: moderate to severe spasm, moderate to severe deformity, and a moderate loss of motion. Sometimes the patient will also present with neurological findings and/or x-ray changes and sometimes the patient will require strong pain medication for a few days.

[39] Based on his review of Dr. Fahim’s clinical records, including the CL-19 report, which he understood was completed on March 3, 2003, Dr. Schweigel concluded that the plaintiff did not suffer a moderate to severe soft tissue injury. In his view, since the CL-19 report reflects pain and tenderness of the neck and upper back, a good range of motion of the neck and upper back and mild tenderness of the neck and upper back, the physical abnormalities noted at this time were “extremely minimal”. He noted that “(s)he had mild tenderness of the neck muscles with good range of motion”.

[40] The difficulty here is that the CL-19 report relied upon by Dr. Schweigel was actually authored on March 3, 2004 rather than March 3, 2003. At that time the plaintiff was in Grade 12, she was dancing regularly and the intensive final examination study period had not begun. She was in fact doing quite well.

[41] This is in contrast to her condition just over a year earlier when Dr. Fahim examined her on February 15, 2003. At that point he noted her complaints of pain and tenderness in both the trapezius and upper back areas, and the decreased range of motion of her neck in all directions. There is no recording of “mild” tenderness with a good range of motion as Dr. Schweigel suggests in his report of January 14, 2008.

[42] While Dr. Fahim’s clinical records were available for review, Dr. Schweigel made no reference to them in his report. Nor did he refer to the records of the physiotherapist, Dawn Stevens, who, three weeks post accident, noted that the plaintiff’s neck was “very stiff” and that it was “very hard to mobilize (her) neck”.

[43] Quite apart from his erroneous reliance on the March 3, 2004 CL-19 report, I am not persuaded that Dr. Schweigel’s rigid classification of soft tissue injuries and his insistence that a myofascial pain syndrome may only arise in the case of a moderate to severe soft tissue injury case are reliable.

[44] While I accept that Dr. Schweigel is a very senior and experienced orthopaedic surgeon, with a long career focused particularly on spinal cord injury, in my view he did not demonstrate the same degree of expertise as Dr. Anton in the diagnosis and treatment of soft tissue injury. His categorization of soft tissue injuries struck me as both rigid and simplistic. No peer reviewed journals or other medical literature were produced to support his analysis. Nor did he demonstrate any in depth appreciation of the characteristics of a “trigger point”, as described by Dr. Anton.

Even More Analysis of Rule 37B

Written by admin on January 28, 2009. Posted in Civil Procedure, Uncategorized. 70 Comments on Even More Analysis of Rule 37B

Well the cases seem to be coming in at a good pace and hopefully Rule 37B will start seeing some consistency in its interpretation by the BC Supreme Court.
Today another case was released by the BC Supreme Court applying and interpreting this rule. In this case the Plaintiff was involved in a motor vehicle collision and sued for damages. The Defendants made an offer to settle for $16,000 plus costs under the old Rule 37. The Plaintiff rejected the offer, went to trial and was awarded just over $12,000. Madam Justice Morrison made the following findings about the costs consequences flowing from these facts:

Policy Reasons for the Offer to Settle Rule

[42] I turn first to the policy reasons behind the new rule.

[43] The Court of Appeal commented on the purpose of the former Rule 37 in several cases. Although Rule 37 was repealed and replaced with Rule 37B, the underlying rationale of Rule 37 is, in my opinion, still informative. Rule 37 was designed to encourage settlement. In MacKenzie v. Brooks, 1999 BCCA 623, 130 B.C.A.C. 95, the court made the following comment on the purpose of Rule 37:

[21] Rule 37 is clearly designed to encourage the early settlement of actions. It does so by rewarding the party who makes an early and reasonable settlement offer, and by penalizing the party who declines to accept such an offer. The reward or penalty takes the form of costs (in some cases, double costs) from the date the offer is made. The significant role which costs now play in the litigation process operates as a powerful incentive to parties to make early offers of settlement under the Rule and to accept reasonable offers.

[44] In Skidmore v. Blackmore (1995), 2 B.C.L.R. (3d) 201, 122 D.L.R. (4th) 330 (C.A.), the Court of Appeal commented on an older version of Rule 37 and Rule 57(9) (costs follow the event) at para. 37:

[37] These Rules are designed to discourage frivolous actions and defences and to encourage the parties to make reasonable offers to settle as early as possible. Thus, party and party costs serve many functions. They partially indemnify the successful litigant, deter frivolous actions and defences, encourage both parties to deliver reasonable offers to settle, and discourage improper or unnecessary steps in the litigation.

[45] Rule 37B is still designed to discourage frivolous actions and encourage parties to make and accept reasonable offers. In Alan Seckel & James MacInnis, B.C. Supreme Court Rules Annotated 2009 (Toronto: Thomson, 2008), the authors commented on the introduction of Rule 37B. They say that the new rule was necessary because the old rules had become dysfunctional, largely because of the lack of flexibility. They describe the new rule as a welcome improvement. They add at 373 that “the difficulty with Rule 37B will invariably be its lack of direction for parties and trial judges as to how to effect fairness in the face of the same problems which made interpretation and application of Rules 37 and 37A so difficult.”

[46] I agree in this respect with the following observation by Hinkson J. in Bailey v. Jang, 2008 BCSC 1372, a personal injury case heard before a jury, at paras. 17-18:

[17] In Mackenzie v. Brooks et al, 1999 BCCA 623 (sub nom. Mackenzie v. Brooks et al) 130 B.C.A.C. 95 at p. 21, the British Columbia Court of Appeal described the predecessor rules to Rule 37B as designed to encourage settlement by, among other things, “penalizing the party who declines to accept” an offer to settle.

[18] While Rule 37B has brought about the reversion from a strict code to a reliance on judicial discretion with respect to costs, the use of costs to encourage or to deter certain types of conduct remains, albeit based upon the factors set out in subrule 37B(6).

The Factors under Rule 37B

[47] I turn now to the factors under Rule 37B.

[48] In my opinion, given the fact that the offer was made three years and almost four months after the date of the accident and well over a year after the action was commenced, the plaintiff should have known what medical information was available to him. I agree with the defendants that this is a case where Mr. Leus was working full time from the date of the accident. It is true that in Fast Track Litigation it is not cost efficient to end up with several medical legal reports from one doctor. However, Mr. Leus did not have any information from Dr. Hodgeson, informal or otherwise, at the time of the offer.

[49] As the defendants point out, the plaintiff could have contacted Dr. Hodgeson earlier. By the time the report was requested, it was already 60 days before the trial so the rule requiring notice could not have been met in any event. The further requests that were made were well within the 60 days.

[50] The offer was made in timely manner and at a time when the plaintiff should have known his case. It was an offer that ought reasonably to have been accepted at the date of the offer.

[51] While I have considered the argument that the defendants, because of the participation of ICBC, can take advantage of making an early, low offer, in my opinion there is no such unfairness demonstrated.

[52] In this case, $16,000 is a more favourable amount to the plaintiff than the $12,748.48 ordered by the court. This factor favours the plaintiff being penalized for not accepting an award 20 percent greater than the judgment. The fact that the numbers are low does not change the analysis.

[53] The plaintiff argues that he should get preference under this factor because ICBC has significantly more resources to absorb the costs of litigation than he does and, as a result, ICBC is in a unique position to make early offers to settle.

[54] The defendants argue that ICBC is not a party and the legal principles that developed under the old rule should still apply. It would not be fair, they argue, if they were forced to pay the entire judgment, disbursements, and their own costs after they made a reasonable formal offer that was more than the final award.

[55] Different views have been expressed by members of the court on the question of the relevance of fact that the defendants have insurance.

[56] Mr. Justice Hinkson made the following comments in Bailey at paras. 32-34:

[32] Second, [the plaintiff] places her financial position against that of ICBC, as opposed to that of the defendants.

[33] While I accept that it is likely that most drivers in British Columbia are insured by ICBC, the wording of subrule 37B does not invite consideration of a defendant’s insurance coverage. There may be good policy reasons for this. Insurance coverage limits with ICBC are not universal, and will vary from insured to insured. Certain activities may result in a breach of an individual’s insurance coverage, or the defence of an action under a reservation of rights by ICBC. A plaintiff will not and likely should not be privy to such matters of insurance coverage between a defendant and ICBC.

[34] The contest in this case was between the plaintiff and the defendants, and the insurance benefits available to the defendants do not, in my view, fall within the rubric of their financial circumstances, any more than any collateral benefit entitlement that a plaintiff may have would affect that person’s financial circumstances for the purpose of determining their loss.

[57] Mr. Justice Butler in Arnold said that the mere fact that the defendant is insured is not enough to deprive the defendant of costs at para. 23:

[23] Mr. Arnold has asked that I take into account the relative financial circumstances of the parties when exercising my discretion. I find that I am unable to do so. First, Mr. Arnold has provided no evidence regarding his financial circumstances other than the assertion that the likely result of a costs award in favour of the defendant will leave him with no recovery from the action. Rule 37B gives this Court greater discretion than it had under the old Rule 37. It specifically allows the Court to consider the relative financial circumstances of the parties. However, there will always be a substantial difference between the relative financial circumstances of the usual personal injury plaintiff and the defendant’s motor vehicle insurer. That difference, in and of itself, is not enough for the Court to exercise its discretion to deprive the defendant of costs. If that was the intent of the new rule, it would have been more clearly articulated.

[58] Conversely, Madam Justice Boyd in Radke v. Parry, 2008 BCSC 1397, did consider the fact that the defendants were insured by ICBC at para. 42, a case where costs were awarded against the defendants:

[42] In the case at bar, on a review of the Rule and the authorities, I conclude that the plaintiff is indeed entitled to double costs from the date of the August 12th offer of settlement forward…It is also clear that there is a substantial disparity in financial circumstances between the parties. The defendants, represented by ICBC, had substantially greater resources to finance a trial than the individual plaintiff. Had the defendants accepted the plaintiff’s initial reasonable offer, the plaintiff would not have had to incur the significant costs associated with nearly two weeks of trial.

[59] Even if there may be cases in which the fact that a party is insured may be relevant to that party’s financial circumstances and hence the party’s ability to pay a costs award, this is not one of those cases. Here, there is very little information about the actual financial circumstances of the plaintiff, Mr. Leus. Though Mr. Leus says he has a mortgage and a family to support, no details are provided as to his actual income and expenses. Nor is there much information about the actual financial information of the defendants, John Laidman, Marjorie Laidman, and Ference Sandor. The Court cannot draw permissible inferences from the very

[60] The defendants argue that Rule 57(10) should be considered whereas the plaintiff says that the Court is only being asked to decide entitlement to costs and not quantum, so Rule 57(10) is not applicable.

[61] Rule 57(10) says:

A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.

[62] I am satisfied that Mr. Leus has shown that at the time his claim was initiated, there was a sufficient reason to bring the action in Supreme Court. The amount he was claiming was close to the line; it was appropriate to use the discovery process to obtain evidence of the others involved in the accident: Reimann v. Aziz, 2007 BCCA 448, 72 B.C.L.R. (4th) 1.

Conclusion

[63] In conclusion, the purpose of Rule 37B is to encourage settlement and avoid frivolous use of court resources by imposing punitive cost sanctions. In the present case, the defendants made a reasonable offer to settle that ought to have been accepted by the plaintiff. The offer was 20 percent higher than the plaintiff’s final award. Given the overarching purpose of Rule 37B, Mr. Leus should be denied his costs, including his disbursements of $7,500, from the date of the offer, because he failed to accept the offer to settle.

[64] However, though the court could award the defendants single costs, I have decided it is not appropriate to do that in the particular circumstances of this case. The decision depriving the plaintiff of his costs meets the objectives of the Rule. I have considered, in particular, the size of the award, the fact that it was less than $4,000 lower than the offer, and the impact of this decision on what Mr. Leus will actually receive.

The Old, The New and The Ugly – Costs Consequences Involving Rule 37 and Rule 37B

Written by admin on January 28, 2009. Posted in Civil Procedure, Uncategorized.

I’ve blogged about most if not all of the recent reported BC Supreme Court judgements applying the new Rule 37B and don’t intend to summarize a history of the rule here (for a history of the rule and to read my previous articles on Rule 37B cases simply use the search feature on this site and type Rule 37B).
Reasons for judgement were released today considering an interesting issue. Rule 37B, once it came into force, repealed Rule 37. In recognizing that a transition period was necessary the rule permitted costs consequences to flow from formal offers delivered under the old Rule 37 if those offers were made before July 2, 2008. Today;s case decided what costs consequences should flow when an old Rule 37 offer is accepted after Rule 37B comes into effect.
In this case the Defendants made a formal offer in April, 2008 under the old Rule 37. The Plaintiff accepted the offer in November of 2008, after Rule 37B took effect. The parties could not agree on the costs consequences of the acceptance and application was brought to the BC Supreme Court. The point of contention was who should be responsible for the costs incurred after delivery of the offer to the time of acceptance. The court dealt with this issue delivering the following reasons:

[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 a discretion on the court to set aside an agreement that has been entered into between the parties regarding costs.

[12] The offer made by the defendants reads as follows:

TAKE NOTICE that the Defendants offer to settle this proceeding on the following terms:

1. the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000.00), less deductible benefits paid or payable pursuant to Part 7 of the Insurance (Vehicle) Regulation, and Section 83 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, and less any advances paid to date; and,

2. Costs to be taxed in accordance with Rule 37(22) and (37).

[13] Although Rule 37 was repealed and replaced by Rule 37B, by incorporating the wording of Rule 37(22), the offer provided that the defendants would pay costs to the plaintiff to the date the offer was delivered and that, if the matter were to continue, the defendants would be entitled to their costs from the date of delivery. Former Rule 37(22) provided that if an offer made by a defendant was accepted by a plaintiff, the plaintiff is entitled to costs to the day of the offer, and the defendant is entitled to costs from the date of the offer.

[14] In this case, there has been no determination of any issues in this lawsuit. Rather, Mr. Buttar accepted the offer to settle as presented by the defendants.

[15] The letter of acceptance is unequivocal and states the following:

We confirm that there have been no advances under Tort or under Part 7 to our client.

We accept the Defendants’ Offer to Settle dated April 28, 2008.

I note that the Defendants’ Offer to Settle was made under the old Rule 37, but our acceptance of that offer is clearly under the new Rule 37B which does not provide a form for acceptance. As such, out of an abundance of caution, I also enclose an Acceptance of Offer in Form 65A.

[16] On this application, the parties argued the effects of Rule 37B(4),which provides that the award of costs is discretionary, and Rule 37B(5)(a), which provides that the court may do one or both of the following: deprive a party, in whole or in part, to costs that would otherwise be entitled to and award double costs of all, or some, of the steps taken in litigation after the date of the delivery of the offer to settle.

[17] I agree that subrules 37B(4) and (5) are permissive. However, it is my view that the court has no discretion to consider costs in this matter because Mr. Buttar accepted an offer which contained a term as to when costs would be payable and to whom.

[18] Accordingly, Mr. Buttar’s application is dismissed. The defendants are entitled to the costs of this application.

How Can $125,000 really equal $0 in an ICBC Claim?

Written by admin on January 26, 2009. Posted in Civil Procedure, Uncategorized.

Costs consequences, that’s how. If ICBC beats their formal offer at trial they can be awarded costs under Rule 37B. These costs can sometimes exceed the amount of a judgement and reasons for judgement were released today by the BC Supreme Court demonstrating this principle.
Trials can be risky and expensive and to the victor go the spoils. In today’s case the Plaintiff claimed she suffered a brain injury as a result of 2 collisions. The Defendants collectively offered to settle the Plaintiff’s claims for $450,000. The Plaintiff made a settlement offer of $1,500,000. After a 41 day trial Mr. Justice Gropper of the BC Supreme Court rejected the brain injury claim and awarded damages of $125,349. The Defendants brought an application to be awarded costs from the date of their respective formal offers and succeeded. In reading the judgement it appears that these consequences are so significant that the Plaintiff may be left with $0 or perhaps even owe money to the Defendants after all the dust settles. In addressing this reality the court held that such an outcome in and ofitself is not enough to extinguish the Defendant’s entitlement to costs. Specifically, Mr. Justice Gropper reasoned as follows:
As stated, the plaintiff received judgment. The defendants’ costs and disbursements from the time of the offers may exceed the judgment. This is an appropriate factor to consider in determining the appropriate order for costs. It is not sufficient, in my view, to deny the defendants their costs arising from the offers to settle. If the aim of the rule is to encourage reasonable settlements, denying the defendants their costs in the circumstance does not meet that aim. It may be a reason to deny the defendants double costs, but the defendants have not sought double costs in this matter. While it is an important factor to consider, it is not sufficient, in and of itself, to extinguish defendants’ entitlement to the costs.
Cases such as this which illustrate the potential costs consequences of an unsuccessful ICBC claim need to be reviewed when considering claim settlement. Trials come with risk and settlement offers have to be weighed against this risk. Reasons for judgement don’t always reflect who the real winner is. In ICBC claims the real winner is often the party that beats their formal settlement offer and this is not always revealed in judgements.
In addition to illustrating the significant costs consequences which parties can be exposed to in the BC Supreme Court, this case does a good job in discussing Rule 37B. Mr. Justice Gropper summarized the authorities to date applying Rule 37B as follows:

[18] The jurisprudence is developing in this court under Rule 37B(5) in regard to the effect of offers to settle on costs. The following principles have been stated:

1. “…Rule 37B is permissive in nature and provides the Court with a broad discretion to award double costs”: Radke v. Parry, 2008 BCSC 1397 at ¶37.

2. “…there are important differences between Rule 37B and the predecessor rules, Rule 37 and Rule 37A. Notwithstanding the differences … the underlying legislative policy remains the same. The goal has been and remains to encourage the early settlement of disputes ‘… by rewarding the party who makes an early and reasonable settlement offer, and by penalizing the party who declines to accept such an offer’ (see MacKenzie v. Brooks, 1999 BCCA 623, 130 BCAC 95…)”:Radke ¶38.

3. “Subrule (5) is permissive. It empowers the court to make either type of order mentioned in the subrule. By necessary implication, it contemplates that the court may make an order that denies one of the two forms of relief set out in the subrule”: BCSPCA v. Baker, 2008 BCSC 947at ¶ 15.

4. “[Subrule (5)] does not specifically state that it is possible for the court to order costs to a defendant where an offer to settle was in an amount greater than the judgment. Nevertheless, that is implied in the rule. If the court can deprive a party of costs or order double costs, it must also be able to order costs, the intermediate step between those two extremes”: Arnold v. Cartwright Estate, 2008 BCSC 1575 at ¶15.

5. “One of the goals of Rule 37B … is to promote settlements by providing that there will be consequences in the amount of costs payable when a party fails to accept an offer that ought reasonably to have been accepted. That goal would be frustrated if Rule 37B(5) did not permit the court the option of awarding costs of all or some of the steps taken in a proceeding after the date of delivery of an offer to settle”: Arnold at ¶16.

He then went on to decide that the Defendants ought to be awarded their costs in the present case and came to the following conclusion:

[35] In all of the circumstances, applying the factors addressed by the Rules and the parties, I find that it is reasonable that the defendants recover their taxable costs and disbursements in this action.

[36] I therefore order that the defendants Paul be awarded their taxable costs and disbursements from June 8, 2005 onwards. The plaintiff is entitled to her taxable costs and disbursements in the Paul action up to June 8, 2005 only.

[37] The defendants Brandy are awarded their taxable costs and disbursements from October 26, 2006 onwards and the plaintiff is entitled to recover her taxable costs and disbursements in the Brandy action up until October 26, 2006.

What interested me most in these reasons was the judge’s refusal to look at the fact that the Defendant was insured with ICBC when weighing the relative financial circumstances of the parties under Rule 37B(6). The courts are currently split on whether this is a relevant factor and once the BC Courts come up with a consistent analysis of this topic it will be easier for ICBC claims lawyers to better predict the costs consequences for their clients following trial. Hopefully the BC Court of Appeal has an opportunity to shed some light on this subject in the near future.