No Costs Consequences Triggered By Late Defence Formal Offer in Infant Claim

Update June 18, 2013 – Leave to Appeal the below decision was refused by the BC Court of Appeal
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Adding to the list of ‘other factors Courts can consider when deciding whether a formal settlement offer should trigger costs consequences following trial, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, considering the fact that an infant settlement would require Public Trustee approval.
In last week’s case (Nemoto v. Phagura) the Plaintiff was involved in a collision when she was 13.   One week before trial ICBC made a formal settlement offer which was $300 greater than the damages she was ultimately awarded at trial.  ICBC applied to strip the Plaintiff of her post trial costs and to be awarded theirs.  Mr. Justice Smith refused to do so noting that the offer was only 1% greater than the trial award, that there was no competing defence medical evidence to better define risk and lastly that the Public Trustee’s approval would be required which would result in an abandonment.  Addressing the last factor the Court provided the following reasons:
[10]         A further complication arose in this case from the fact the plaintiff was 17 years old at the time of trial. That means a settlement based on the formal offer would have required the consent of the Public Guardian and Trustee (“PGT”) pursuant to s. 40 (7) of the Infants Act, R.S.B.C. 1996, c.223. The absence of defence medical evidence may have made it more difficult for plaintiff’s counsel to persuade the PGT of the appropriateness of the settlement.
[11]          In any case, the PGT’s views could not likely have been obtained in the week between the date of the offer and the date of trial, requiring an adjournment of the trial. The plaintiff had to consider the delay that would have been involved in proceeding to trial at a later date in the event, however unlikely, the PGT was not prepared to consent.
[12]         In these circumstances, I cannot say that the offer ought reasonably to have been accepted and I decline to give effect to it in the matter of costs.

bc injury law, Mr. Justice Smith, Nemoto v. Phagura, Rule 9, Rule 9-1, Rule 9-1(5), Rule 9-1(6), Rule 9-1(6)(d)

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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