Court Declines to Order Double Costs After Jury Dismisses Injury Claim Based on Liability

Reasons for judgement were published last week by the BC Supreme Court, Vancouver Registry, demonstrating the discretionary nature of double costs awards following the dismissal of a personal injury claim.

In last week’s case (Findlay v. George) the Plaintiff was involved in a significant 2013 collison.  The crash left the defendant motorist dead at the scene.  The Plaintiff  “attempted to assist with the rescue and resuscitation of the defendant at the scene and, in the result, suffers from post-traumatic stress disorder “.

The Plaintiff’s damages were potentially significant with the Court noting “given the commonality of the medical evidence, damages could have reached seven figures.”.

Prior to trial ICBC provided a formal settlement offer of $80,000.  The Plaintiff declined and proceeded to trial where the claim was dismissed based on liability.  ICBC sought double costs.  Mr. Justice Harvey refused to grant these noting costs awards are discretionary and given the potential damages at play and further some evidence where contributory negligence could have been established it was reasonable for the Plaintiff to proceed to trial in the face of this offer.  In declining to award double costs the Court provided the following reasons:

[38]         Rule 9-1 is discretionary. The discretion is to be judicially exercised.

[39]         Here, despite the fact hindsight makes clear the offer ought to have been accepted, I conclude that the plaintiff’s rejection of the defendant’s offer, when made and to the date of trial, was not unreasonable based upon the following:

1)              the evidence from Mr. Ising and the two lay witnesses that there was plenty of room within the defendant’s lane of travel to pass the plaintiff’s trailer without contacting the plaintiff’s trailer despite its incursion into his lane of travel;

2)              the overall magnitude of the claim given the commonality of the medical opinions regarding the plaintiff’s condition and the economic impact of the injuries he admittedly suffered; and

3)              the uncertainty surrounding the admissibility of the medical records of the defendant which the plaintiff thought would assist the jury in concluding that the defendant failed to react appropriately to reasonably avoid the collision.

4)              Finally, the offer to settle provided no legal or factual analysis on which the plaintiff could consider acceptance or rejection; specifically, there was no analysis of the weaknesses of the plaintiff’s position resulting in the defendant’s assessment of the case in making the offer.