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ICBC Claims and Lawyer Fees

Written by admin on . Posted in Uncategorized. 119 Comments on ICBC Claims and Lawyer Fees

Reasons for judgement were released today by the BC Court of Appeal reducing a lawyer’s fee for services performed on a contingency basis.
The facts of the case are tragic.  The Plaintiff was catastrophically injured when she was 19 months old in a single vehicle roll over accident in 1993.
A claim was started against the driver of the vehicle.  Eventually a new lawyer took over the file and acted for the Plaintiff for over 10 years and had to spend over $10,000 of her own money to move the prosecution of the claim along.
The claim eventually settled for the ICBC insurance policy limits.  Although the fee agreement permitted the lawyer to charge 33.3% of the settlement the lawyer reduced the fee to 20%.
In these circumstances the fees needed the approval of the Supreme Court and in 2007 the fees were approved.  The Office of the Public Guardian and Trustee appeled the approval claiming the fees were excessive in the circumstances.
Interestingly, the guardian of the child took no issue with the legal fees and did not oppose the approved fee of 20%.  In other words, the client appeared to be happy with the services performed and the fees charged but the government was not.
The BC Court of Appeal reduced the lawyers fee to about 12% of the amount recovered.  In doing so the court summarized some of the factors that are considered when approving contingency fee agreements, specifically:

1.         the financial circumstances of the plaintiff;

2.         the risk to the law firm where it carries disbursements;

3.         the complexity of the issues;

4.         the experience and skill of defendant’s counsel;

5.         the experience and skill of plaintiff’s counsel;

6.         the risk assumed by plaintiff’s counsel that there would be no pay for effort expended;

7.         the time expended by plaintiff’s counsel;

8.         the importance of the case to the plaintiff; and,

9.         whether the settlement is a good settlement.

The court then went on to adopt some generally accepted propositions regarding contingency fee agreements in British Columbia:

[22] He said, in commenting in general on contingency fee remuneration at p. 269:

A solicitor who undertakes the prosecution of a difficult case, the prospects of which are uncertain due to various issues such as liability, causation or damages, is entitled to be well compensated in the event the case is brought to a successful conclusion.  Such remuneration must be substantial, but not exorbitant, in order to make up for those cases taken by the solicitor on a contingency fee basis which do not result in success.

[23] In Usipuik v. Jensen, Mitchell & Co. (1986), 3 B.C.L.R. 283, [1986] 5 W.W.R. 41 (S.C.), Madam Justice Southin observed (at p. 297):

In approaching the question of the fairness of any particular contract for fees on a percentage basis, one must remember that there are many kinds of personal injury cases: motor vehicle accidents, medical and other professional malpractice, products’ liability, occupiers’ liability and no doubt other kinds which do not, at the moment, occur to me. Medical malpractice cases are notoriously difficult and expensive to pursue. Expert witness fees in themselves can run to many thousands of dollars.

But actions for negligence in the operation of a motor vehicle may or may not be risky or difficult. Sometimes there is an issue of liability; frequently there is not. Sometimes there is a real difference of opinion on the proper amount of damages between the plaintiff and the Insurance Corporation of British Columbia; sometimes, there is very little.

Do you have questions about this case or lawyers fees and ICBC claims?  Feel free to contact me.

$30,000 Pain and Suffering for 2 year 'mild to moderate' Soft Tissue Neck Injury

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

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff compensation as a result of a 2002 motor vehicle collision.
The collision happened in Victoria.  It was a rear end crash and the Defendant admitted fault.  This appears to be a crash that fit into ICBC’s Low Velocity Impact (LVI) criteria as the vehicles suffered minimal damage.
The Plaintiff claimed significant injury which was on-going more than 5 years post collision which would impact her future earning capacity.  The defence position was that that crash caused a mild soft tissue injury which resolved by October 2003.
The court found that the crashed caused a 2 year soft tissue injury and made the following findings:
[26] I have some difficult in assessing (the Plaintiff’s) evidence.  She describes the resulting dent in her car as huge, yet it does not look like that in the pictures and the cost to repair was estimated at only $53.  She said she was in incredible pain immediately after the accident, yet Ms. Lobb spoke to her and was under the impression everyone was fine.  No ambulance was called, nor did she seek immediate medical attention which I would expect would happen if the pain was immediately “incredible” and “excruciating”.  On the other hand, I have no doubt that (the Plaintiff) suffered pain caused by the accident which, as documented by the medical reports, gradually got worse over the ensuing weeks.  I also have no doubt that (the Plaintiff) continues to have pain to this day – it seems to me on looking at her that it is written in her face.  As Dr. Vincent testified, people do not go for injection therapy unless they have pain.  Furthermore, there is evidence from her mother, her friend and her employers that she is not the high energy person she once was.  The difficulty is to assess the degree to which the collision is the cause of her pain and the true effect of that upon her life.  There is a tendency to attribute a multitude of difficulties following a car accident to that one cause when often there are many…….

[31] (the Plaintiff) bears the onus of proving that the condition for which she seeks compensation was on the balance of probabilities caused by the December 30th, 2002 collision. I  find on the evidence that she did suffer a mild to moderate soft tissue injury to her neck and back as initially diagnosed in her early months of treatment by Dr. Down which was caused by the collision.  I am not persuaded, however, on the balance of probabilities, that her condition caused by the accident injuries extended beyond the two year period initially foreseen by Dr. Down.  She was clearly on a course of recovery in that two year period.  What happened thereafter has not been proven to have been caused by the December 30th, 2002 collision.

[32] I assess (the Plaintiff’s) general damages for a mild to moderate soft tissue injury to her neck and back extending over a period of two years at $30,000.

Supreme Court of BC and Trial Costs

Written by admin on . Posted in Civil Procedure, ICBC LVI (Low Velocity Impact) Cases, Uncategorized. 103 Comments on Supreme Court of BC and Trial Costs

Today I’m blogging from sunny Kamloops from my colleague Peter Jensen’s office.  Clients are coming soon so I have to keep this short.
The Supreme Court of BC has an unlimited monetary jurisdiction whereas BC small claims court currently has a jurisdiction of $25,000 or less.  When suing for damages as a result of a BC car accident you have to decide which court you will sue in.
When involved in an ICBC tort claim in the BC Supreme Court the winner can be awarded Costs, whereas in Small Claims Court the winner can only be awarded disbursements as opposed to Tariff Costs.
When you bring an ICBC claim in Supreme Court and are awarded less than $25,000 can you still be awarded your court tariff Costs?  The answer is sometimes.
Rule 57(10) of the BC Supreme Court rules states that
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.
The question then is, did you have a good reason to sue in Supreme Court when you started the lawsuit?
Reasons for judgement were released today awarding a Plaintiff Costs even though the ultimate award was below $25,000.  At Paragraphs 7-10, the trial judge (Madam Justice Humphries) explained why in this case the Plaintiff had ‘sufficient reason’ to bring the suit is Supreme Court holding that:

[7] The relevant time at which the value of (the Plaintiff’s) claim should be assessed, then, is when the action was commenced.  At that time, (the Plaintiff) still had some residual effects from the accident and was missing the occasional day of work.  I found this evidence credible, and noted that she still had occasional flare-ups, with decreasing frequency.  Her voluntary retirement worked to the benefit of the defendant in that any potential ongoing wage loss from these flare-ups would not be claimed against him.  (the Plaintiff) was careful to ensure that only those days attributable to the effects of the accident were claimed for.  She asserted a claim for loss of earning capacity, but decided not to pursue it by the time of trial.  Although such an award would not have been large, if any at all were established, it is difficult to say, in hindsight, that the entire claim would obviously have come under the Small Claims limit of $25,000 at the time the action was commenced.  Plaintiff’s counsel subsequently came to assess the claim with the advantage of all the information available by the time of trial and to put forward a realistic and sustainable range of damages in his final submissions, but that is not, according to Reimann, relevant to the present issue.

[8] In Faedo v. Dowell and Wachter, M064051 (October 19, 2007) Vancouver, Curtis J. held that in a situation where the defendant put the plaintiff to the proof of having suffered any injury at all, thus making her credibility a crucial issue at trial, it was reasonable for the plaintiff to require the assistance of counsel.  She was therefore justified in commencing the action in Supreme Court where she could hope to recover some of the costs it was necessary for her to expend in retaining counsel to recover the compensation to which she was found to be entitled.  This reasoning has application here as well.

[9] In the result, the plaintiff has advanced sufficient reason for having commenced her action in this court and is entitled to her costs pursuant to Rule 66.

This is a good judgement for Plaintiffs bringing ICBC claims, particularly those involved in Low Velocity Impacts (LVI’s) where ICBC denies that injury occurred.  It recognizes the fact that ICBC often tells people that they aren’t injured at all and this brings their credibility into play.   Here the court realized that in such circumstances it is appropriate to hire a personal injury lawyer and try to offset some of these costs by suing in Supreme Court even though the Small Claims Court has sufficient monetary jursidiction to deal with the tort claim.

Why Can ICBC Claims Take a Long Time to Settle?

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1. The medical system is slow
2. The Court system is slow
Personal injury cases depend on both the medical system and the court system. When you add these 2 systems together it is easy to see why it can take a very long time to fairly settle an ICBC injury claim.
In cases of minor injuries that quickly heal there is no reason for the settlement of the ICBC tort claim to take a long time. Once the injuries fully heal your losses can be valued, out of pocket expenses can be added up and a fair range for pain and suffering can be negotiated.
In cases of serious injury it is not that simple. Serious injuries can take a long time to heal. Sometimes they don’t fully heal, instead they plateau at what’s known as a point of ‘maximum medical improvement’. In cases of serious injury it is imprortant to learn what their long term consequences will be prior to settling with ICBC. The following are some of the questions that should be answered prior to settling:
1. Will the injuries fully heal?
2. If so, when will they fully heal?
3. If not, when will they reach the point of maximum medical improvement?
4. Will the injuries get worse with time? (such as the on-set of post-traumatic arthritis)
5. What effect will the injuries have in the long term on one’s ability to work?
6. What future care needs will be necessary to compensate for the long term injuries?
It is very difficult to fairly value an ICBC injury claim involving serious injuries if the answers to the above questions are not known. These questions often can’t be answered quickly. The medical system is slow. It can take a long time to get properly investigated (wait lists for specialists, who then order tests, wait lists for tests, wait lists to see the specialist again….)
Once the full long term impact of injuries is known they can be valued. Settling prematurely can be financially devastating if the long term reality of injuries is worse than anticipated at the time of settlement.  As a personal injury lawyer I often find myself speaking with people who settled their cases prematurely for amounts that significantly short change their injuries. It is only in rare circumstances that such settlements can be set aside.
Keep limitation periods in mind and know that time is on your side when it comes to settling an ICBC injury claim. The desire for quick settlement should never over-ride the desire for a fair settlement.

How Saving a Few Hundred Bucks Could Cost You a Few Hundred Thousand

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When you purchase a contract of insurance with ICBC they want to know who the principal operator is going to be. The insurance premiums may vary based on the person’s driving record. It is unfortunately all too common of a problem for people to misrepresent who the principal operator of their vehicle is when insuring the vehicle with ICBC. Doing so is a breach of section 75 of the Insurance (Vehicle) Act which reads as follows:

75 All claims by or in respect of the applicant or insured are invalid and the right of an applicant, an insured, or a person claiming through or on behalf of an applicant or insured or of a person claiming as a dependant of the applicant or the insured, to insurance money under the plan or an optional insurance contract, is forfeited if

(a) the applicant for coverage under the plan or the optional insurance contract

(i)  to the prejudice of the insurer, falsely describes the vehicle in respect of which the application is made, or

(ii)  knowingly misrepresents or fails to disclose in the application a fact required to be stated in it,

(b) the insured violates a term or condition of or commits a fraud in relation to the plan or the optional insurance contract, or

(c) the insured makes a wilfully false statement with respect to the claim.

I have unfortunately seen too many examples of people getting into trouble for misrepresenting the principal operator to ICBC. Parents say they are the principal operator when really their kids are or friends claiming they are the principal operator when really their buddy with a few too many speeding tickets is. All this to save a few hundred bucks. This ‘misrepresentation’ can lead to a loss of coverage. This loss of coverage could result in hundreds of thousands of dollars of debt not only to the driver but to the registered owner who claimed they were the principal operator.
The following are a few examples of the potential consequences of breaching a policy of insurance by lying about who the principal operator is:
a. If your car gets stolen ICBC would not have to pay you for this
b. If you are injured in a car crash that is not your fault ICBC will not have to pay you your ‘no-fault’ benefits
c. If you are at fault for a crash and injure someone else ICBC will not indemnify you for the losses you caused. Imagine that you are at fault for a crash that results in serious injury to another motorist. Imagine that the other motorists ICBC injury claim is worth $300,000. You could be on the hook personally for the value of that claim!
The consequences of breaching your ICBC insurance policy far outweigh the benefits of saving a friend or family member a few hundred bucks on their insurance premiums. Being in breach of insurance can have life-long financial consequences on motorists and I have seen these first hand. If you know of anyone who is trying to save a few bucks by misrepresenting who the principal operator of their vehicle is, do them a huge favour. Tell them the consequences before it is too late.

Rule 68 and Expert Costs

Written by admin on . Posted in Civil Procedure, Uncategorized. 56 Comments on Rule 68 and Expert Costs

Rule 68 of the BC Supreme Court Rules was introduced to deal with certain cases worth $25,000 – $100,000. For such cases this rule was implemented to help bring cases to trial more quickly and with less expense. In doing so certain limits were imposed on how a claim can be prosecuted. One of the most significant restrictions (as it relates to ICBC injury claims) is the restriction of Rule 68(33) which generally limits a party to only one expert witness. Specifically this subrule states that:

(33) Unless the court orders otherwise, a party to an expedited action is entitled, under Rule 40A, to tender the written statement of, or to call to give oral opinion evidence, not more than

(a) one expert of the party’s choosing, and

(b) if the expert referred to in paragraph (a) does not have the expertise necessary to respond to the other party’s expert, one expert to provide the required response.

As many ICBC injury claims lawyers know, it is often difficult to prepare a case for trial with only one expert witness. Often an injured Plaintiff has several treating physicians and it is important to hear from all of them. Similarly it is often a good idea to retain a highly qualified specialist to conduct an ‘independent medical exam’ to summarize all of the Plaintiffs injuries and provide a comprehensive opinion addressing injuries, causation prognosis and need for future treatment. All of this costs money. When a case is prosecuted under Rule 68, then, does the above subsection prevent a successful plaintiff from claiming the costs of hiring more than one expert? Reasons for judgement were released today which say no.
In this case the Plaintiff suffered various injuries in a car accident. The claim was prosecuted under Rule 68 and eventually settled for $25,000. In prosecuting the case the Plaintiff lawyer obtained reports from 5 experts. ICBC argued that Rule 68
“restricts the plaintiff to claiming disbursements relating to one expert only, unless (the Plaintiff) has obtained a court order allowing more than one expert…. as the plaintiff did not seek leave from the court to introduce more than one expert report, the plaintiff ought to be limited to claiming for only one expert’s report as part of the disbursements in this action…..based on the principles of proportionality and the express limit on the number of reports permissible in such an action, it was not reasonable or proper to engage this number of experts.“
The court rejected this argument and held that in this case it was reasonable to have the Plaintiff assessed by more than one expert. Specifically the court stated that:
in the circumstances of this particular action (where the plaintiff was clearly fragile) it was reasonable and necessary to engage a number of experts to assess the plaintiff. If that is the case, then does the application of Rule 68 still prevent the plaintiff from claiming disbursements for each of those experts? I think not. Rule 68 does not say that a party is restricted, on an assessment of costs, from claiming for the costs of more than one expert. It simply says that, without leave of the court, a party may not elicit testimony from more than one expert witness. (the Plaintiff’s lawyer) was, in my view, obliged as counsel to try and determine the extent of the plaintiff’s injuries and to understand the cause(s) of them. She would not have been able to do that without resort to the opinions of the various experts engaged.

$50,000 Pain and Suffering for Moderate Soft Tissue Injury and Fractured Sternum

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, Uncategorized. 57 Comments on $50,000 Pain and Suffering for Moderate Soft Tissue Injury and Fractured Sternum

Reasons for judgement were released today awarding a Plaintiff just over $100,000 in compensation for injuries sustained in a 2005 Vernon car accident including $50,000 for non-pecuniary damages (pain and suffering).
The accident occurred when the Defendant pulled out of an alleyway and struck the Plaintiff’s vehicle. The crash was significant causing the Plaintiff’s 1999 Honda Civic extensive damage.
Mr. Justice Barrow summarized the Plaintiff’s injuries as follows:
I am satisfied that the plaintiff sustained a moderate soft tissue injury to her back in the motor vehicle accident. Both Dr. Coghlan and Dr. Smart diagnosed her injury as such. Further, she sustained a fracture to her sternum. That fracture likely disrupted the soft tissues in the area of her sternum as her body compensated for the boney injury. Those injuries resulted in her being entirely unable to perform the physical labours associated with the operation of the family farm for approximately six months and continued to substantially impair that ability until the farm was sold in the summer of 2006. I am satisfied that they continue to limit her function today in the sense that she is unable to lift her grandchildren and she experiences difficulty in doing other activities that she formerly enjoyed, including keeping her house, tending to her garden and sleeping. As to the future, these limitations will likely continue although they will be moderate. I am also satisfied that she would benefit from a program of physical strengthening. While I understand her reluctance to attend a gym, that would be of benefit to her. It is not the defendant’s responsibility if she chooses not to follow her physician’s advice in that regard.
In finding that $50,000 was fair for Pain and Suffering Justice Barrow noted that “(the Plaintiff) was unable to return to farming, an occupation which was a source of enjoyment and fulfillment to her. She has suffered a loss of independence in that she is unable to keep her house to the standard that she formerly had and is forced to rely on her children to do that for her”

ICBC Claims and Trial Splitting

Written by admin on . Posted in Civil Procedure, Uncategorized. 98 Comments on ICBC Claims and Trial Splitting

ICBC claims can be very expensive to bring to trial. Typically, most of the expenses are associated with the cost of presenting medical opinion evidence. Medical opinion evidence is often required to prove that injuries are caused by an accident, to discuss reasonable treatments (addressing special damages), and to address the specific diagnosis and prognosis of car accident related injuries. Such opinions can cost thousands of dollars to obtain and thousands more to present in court.
What if you have a case that is very risky? What if the trial outcome of ‘who is at fault’ is uncertain and should you lose on that issue you don’t want to be stuck with thousands of dollars of expenses for expert witness fees? Can you do anything about it? As with many areas of the law, the answer is sometimes.
Rule 39(29) of the BC Supreme Court Rules deals with splitting the issues at trial. In an ICBC claim, it is possible to use this rule to ask a court to let the liability (fault) part of a trial run first prior to the quantum part (the part that deals with the value of the ICBC claim).
Specifically, Rule 39(29) states that:
The court may order that one or more questions of fact or law arising in an action be tried and determined before the others, and upon the determination a party may move for judgment, and the court, if satisfied that the determination is conclusive of all or some of the issues between the parties, may grant judgment.
If the court allows an order splitting liability and quantum, and if you lose your ICBC claim at trial on the issue of liability, that could potentially save you tens of thousands of dollars by having the case dismissed prior to presenting all of your medical evidence.
Reasons for judgement were released today where the Honourable Madam Justice Allan refused to sever the issues of quantum and fault.
In paragraphs 11-15 her Ladyship summarizes some of the principles court’s consider when reviewing such an application. I set out these paragraphs below:

[11] There is ample authority for the proposition that an applicant must establish that there exist extraordinary, exceptional or compelling reasons for severance, and not merely that it would be just and convenient to order severance: MacEachern v. Rennie, 2008 BCSC 1064; Hynes v. Westfair Foods Ltd., 2008 BCSC 637; and Westwick v. Culbert, [1992] B.C.J. No. 2121.

[12] It is true that some recent cases have held that a judge’s discretion to sever an issue or issues is not restricted to “extraordinary or exceptional circumstances”: Nguyen v. Bains, 2001 BCSC 1130; Enterprising Minds Technology Inc. v. Lululemon Athletica Inc., 2006 BCSC 1168. However, there must be some compelling reasons to order severance, such as a real likelihood of a significant savings in time and expense.

[13] Mr. McGivern relies heavily on Vaughn v. Starko, [2004] Y.J. No. 50, a decision of the Yukon Supreme Court. In that case, the plaintiff sought a determination of liability pursuant to Rule 18A with damages to be assessed at a later date. Gower J. rejected the defendant’s argument that there must be extraordinary, exceptional or compelling reasons for a severance of liability and damages. He drew a distinction between applications under Rule 39(29) and Rule 18A. He concluded at para. 48 it would not be unjust to decide the issue of liability on a summary basis and that it would be appropriate to sever liability from the issue of damages. Because the application was made under Rule 18A, he found that it was not necessary to apply the heavier onus for severance that Rule 39(29) imposed.

[14] With respect, I do not agree with the analysis in that case. Rule 18A is a method of trying a case summarily. The issues in determining whether Rule 18A is suitable are (1) whether it is possible to find the facts necessary to decide the issues of fact or law; and (2) whether it would be unjust to decide those issues summarily. On the other hand, Rule 39(29) provides the Court with the discretion to try one question of fact or law before another and give judgment. A determination of an application for severance must be informed by the case law that relates to the issue of severance, not to the issue of disposing of an action summarily.

[15] In an earlier case, Legrand v. Canning and Canning, 2000 BCSC 1633, Scarth J. dealt with a severance application brought under Rule 18A. He concluded that the plaintiff had not established extraordinary, exceptional or compelling reasons for severance. In that case, the liability issues were not plain in the circumstances and there was a further issue of whether the plaintiff was contributorily negligent. Evidence relating to the severity of the impact in question was relevant to the issues of liability and quantum.

Rule 39(29) is worth reviewing for anyone advancing an ICBC claim where the issue of fault is uncertain to see if time and expense can be saved by severing the issues of fault and quantum.

Rule 37B – The First Precedent

Written by admin on . Posted in Civil Procedure, Uncategorized. 51 Comments on Rule 37B – The First Precedent

Today I’m blogging from the sunny City of Vernon, having completed an examination for discovery a little earlier than expected with some time on my hands prior to returning to Victoria.
In the first precedent that I am aware of concening Rule 37B (The new BC Supreme Court Rule dealing with formal settlement offers) reasons for judgement were released today refusing to award a successful defendant double costs after trial.
While this is not and ICBC claim, nor even a personal injury claim for that matter, the factors that the court considered in refusing to order double costs may be relevant in an ICBC claim.
The facts of the case briefly are as follows: The Defendant was sued by the SPCA for the costs of care the SPCA incurred for some neglected animals. The Defendant denied liability and made a formal offer to settle the claim for $1. The Defendant succeeded at trial. In such a scenario, under the old Rule 37, the Defendant would likely be entitled to ‘double costs’. Here, the Defendant asked the court to excercises its discretion under the new Rule 37B to award double costs.
The court refused to do so setting out the following reasons:

The Law

[12] Rule 37B(1) reads in part:

(1) in this rule “offer to settle” means

an offer to settle made and delivered before July 2, 2008 under Rule 37, as that rule read on the date of the offer to settle, and in relation to which no order was made under that rule …

[13] In the circumstances, Rule 37B applies to the offer made by Mr. Baker.

[14] Rule 37B (5) and (6) read:

(5) In a proceeding in which an offer to settle has been made, the court may do one or both of the following:

(a) deprive a party, in whole or in part, of costs to which the party would otherwise be entitled in respect of the steps taken in the proceeding after the date of delivery of the offer to settle;

(b) award double costs of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle.

(6) In making an order under subrule (5), the court may consider the following:

(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on any later date;

(b) the relationship between the terms of settlement offered and the final judgment of the court;

(c) the relative financial circumstances of the parties;

(d) any other factor the court considers appropriate.

[15] 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……….

The court then went on to canvass some prinicples of Bankruptcy law and concluded that the Defendant’s offer “was not one that reasonably ought to have been accepted (pursuant to Rule 37B(6)(a) on the date of the offer to settle or before the Rule 18A hearing at which time, pursuant to Rule 37(13), the offer was no longer capable of acceptance.“

The court then went on to deal with Rule 37B(6)(b) and held as follows:

Rule 37B (6) (b)

Rule 37B (6) (b)

[34] This subrule indicates that the court, when exercising its discretion under Rule 37B should consider the relationship between the offer and the result in the action. In this case, the offer to settle was for one dollar. There was no counterclaim. BCSPCA’s only risk was costs. An offer that would confer a significant benefit, aside from costs, on a party who failed to accept the offer would be more likely to attract double costs under Rule 37B that an offer of the type made by Mr. Baker.

Rule 37B (6) c)

[35] The means of the parties may be taken into consideration when exercising discretion under Rule 37B. The BCSPCA is a non-profit society dedicated to prevention of cruelty to animals. It is a substantial society. It had an operating surplus of $379,022 in 2007. Mr. Baker has not disclosed his financial circumstances. His counsel stated in submissions that he is of “modest means”.

Result

[36] In all the circumstances, Mr. Baker has not established that the offer he made was an offer that ought reasonably to have been accepted by BCSPCA under the law applicable during its currency. Acceptance would not have conferred a significant benefit on BCSPCA other that its effect on costs. Although BCSPCA is likely the party most able to bear the costs of the litigation, Mr. Baker has not shown that an award of double costs is, considering the other factors bearing on an award of costs under Rule 37B, necessary to avoid the imposition of hardship in the litigation.

It remains to be seen what the number of soon to be coming precedents will ultimatly hold for the interpretation of this rule, but this case illustrates that courts may not take to kindly to ‘nuisance value’ settlement offers of $1.

$30,000 Pain and Suffering awarded for "mild to moderate soft tissue injuries"

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Blogging from Kelowna again (and a lot less rainy here than Victoria when I left this am)…
Reasons for judgement were released today awarding a Plaintiff just over $43,000 in damages as a result of a 2005 BC motor vehicle accident.
For the purpose of researching non-pecuniary damages, the key findings of fact were made starting at paragraph 132 of the judgement which I reproduce below. Of particular interest is the judge’s 25% reduction of non-pecuniary damages for the Plaintiff’s ‘failure to mitigate’ set out at paragraph 134:

[132] I conclude that the plaintiff suffered a mild to moderate soft tissue injury the symptoms of which were exacerbated by his very heavy work duties, his financial worries, and the poor health of his wife and daughter. The combination resulted in a lack of motivation to adequately do the exercises and instead, a reliance on medications, which his wife supplied. On the evidence before me, I find that the injuries to his neck and upper back had more or less resolved within ten to twelve months after the accident with occasional flare-ups. It is probable that even with appropriate exercising, these symptoms would have persisted that long because he was obliged to return to work too early.

[133] There has been a substantial impact on his enjoyment of life and I am satisfied that he is not able to participate in family activities as much as he could before, including doing the Grouse Grind and fishing with his daughter. His ability to perform previously done housework has also been affected, although I am not satisfied on the evidence of the extent of gardening/lawn mowing help required. The daughter’s boyfriend could have been called as a witness and the failure to do so or explain his absence rightly allows the defence to suggest that I should draw an adverse inference, and I do so. Nevertheless, I accept that the plaintiff is not as able to bend or stoop to paint or do repairs to the house and his car. Further, in part because of his pain, his marital relations with his wife have been affected.

[134] Taking all that into consideration I find that the appropriate compensation for his non-pecuniary loss is $40,000, but this amount must be reduced because of what I find has been a significant failure on his part to mitigate his injuries. He has failed to abide by the doctors’ and physiotherapist’s advice to engage in an appropriate exercise program. Although he said that he could not afford the program, he admitted that he had not even taken any steps to enquire as to the cost. Further, the plaintiff has not diligently performed the exercises that can be done at home and stops at the first sign of pain. He relied and relies too heavily on painkillers when, in the opinion of the medical experts, he should be properly exercising. The defendants are not obliged to compensate a plaintiff who fails to take proper steps to reduce the extent of the loss. Accordingly, I would reduce the non-pecuniary damages as well as some other heads of damages by 25% to reflect this failure and set them at $30,000.