Defence Medico-Legal "Vacuum" Defeats Post Trial Costs Application

UPDATE January 28, 2014 – the BC Court of Appeal overturned the below result in reasons for judgement released today
____________________________________________________
In an interesting demonstration of the BC Supreme Court’s discretion relating to costs awards following trials where formal settlement offers were made, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, refusing to award ICBC costs where a Jury’s damages amounted to less than 10% of ICBC’s best formal settlement offer.
In the recent case (Paskall v. Scheithauer) the Plaintiff was injured in a 2005 motor vehicle collision.  Fault and damages were at issue.  Prior to trial ICBC tabled a $700,000 formal settlement offer.  The Plaintiff proceeded to trial and sought damages of over $2 million.  After a liability split of 80/20 in the Plaintiff’s favour the damages awarded by the jury came to just over $65,000.
Having enjoyed substantial financial victory as compared to their pre-trial offer, ICBC sought post offer costs and disbursements arguing their offer ‘ought to have been accepted’.  Mr. Justice Smith disagreed finding, interestingly,  that the the Defendant’s failure obtain medico-legal reports despite having the Plaintiff attend two independent medico-legal assessments created an evidentiary vacuum making it impossible for the Plaintiff to conclude that the formal offer was one that reasonably ought to have been accepted.  In dismissing ICBC’s sought costs the Court provided the following reasons:
[32]         In order to determine whether an offer is reasonable and ought to be accepted, the plaintiff must be able to consider it in relation to the evidence expected at trial and the apparent range of possible outcomes. In a personal injury case, that exercise usually includes consideration of conflicting medical opinions, along with the possibility and likely consequences of the court preferring certain opinions over others. Plaintiff’s counsel who is relying on an opinion from Dr. X can advise his or her client of the reduction in damages that may result from the court rejecting the evidence of Dr. X and accepting the opinion of Dr. Y that is being relied on by the defendant.
[33]         In this case, the evidence relied on by the plaintiff included opinions of a neuroradiologist, a neuropsychologist, a psychiatrist, an otolaryngologist and two physiatrists. The only experts put forward by the defendant on the question of damages were the occupational therapist dealing with cost of future care and the economist. The defendant served no medical expert opinions, although the plaintiff had attended two independent medical examinations at the request of defence counsel.
[34]         The onus of proof at trial is on the plaintiff. The defendant is under no obligation to produce medical evidence and may rely entirely on cross-examination of the plaintiff and the plaintiff’s medical experts to support an argument that the plaintiff has failed to prove damages. That is what defence counsel chose to do in this case, apparently with great success.
[35]         But the onus of proof at trial is not necessarily relevant to the question of whether an offer made before trial “had some relationship to the claim” or “could be easily evaluated”. In choosing to defend this case in the way he did, the defendant also chose not to provide the plaintiff with evidence on which she could judge the reasonableness of the offers to settle. With the plaintiff’s medical reports in hand, and in the absence of contrary medical opinions, I do not see how reasonable counsel could have recommended acceptance of either of the defendant’s offers or justified such a recommendation to the plaintiff.
[36]         A second factor for consideration set out in R. 9-1(6) is the relationship between the offer and the final judgment. However, the court cautioned against putting too much weight on this factor in cases involving jury trials, given the unpredictability of jury awards: Smagh v Bumbrah, 2009 BCSC 623 at paras 13-14.
[37]         In this case, I find the consideration under R. 9-1(6)(a) to be determinative. I am not only unable to say the offers ought reasonably to have been accepted, but I find that they could not reasonably have been accepted in the context of the evidentiary vacuum in which they were presented. I conclude the plaintiff is entitled to her costs as if the offers had not been made.

bc injury law, Mr. Justice Smith, Paskall v. Scheithauer, Rule 9, Rule 9-1, Rule 9-1(6), Rule 9-1(6)(a)

Comments (46)

  • I just want to tell you that I am new to weblog and actually liked this blog. Most likely I’m planning to bookmark your blog post . You really have good articles. With thanks for revealing your website page.

  • Currently it looks like Drupal is the preferred blogging platform available right now. (from what I’ve read) Is that what you are using on your blog?

  • You can certainly see your skills in the paintings you write. The sector hopes for more passionate writers such as you who aren’t afraid to mention how they believe. All the time go after your heart. “If the grass is greener in the other fellow’s yard – let him worry about cutting it.” by Fred Allen.

  • I am really inspired with your writing talents as neatly as with the structure on your weblog. Is this a paid theme or did you modify it yourself? Anyway keep up the excellent quality writing, it’s uncommon to see a nice weblog like this one these days..

  • I would like to express my appreciation to the writer for bailing me out of this particular dilemma. Right after looking through the world wide web and getting things which are not pleasant, I believed my life was done. Being alive minus the approaches to the issues you’ve sorted out by way of your good guide is a serious case, as well as the ones which may have badly affected my entire career if I hadn’t encountered the blog. Your primary skills and kindness in controlling the whole thing was very useful. I’m not sure what I would have done if I hadn’t encountered such a stuff like this. It’s possible to at this moment relish my future. Thanks a lot so much for this reliable and amazing guide. I will not be reluctant to recommend your site to anyone who ought to have guidance on this subject.

  • I’ve been surfing online more than 3 hours today, yet I never found any interesting article like yours. It is pretty worth enough for me. In my opinion, if all site owners and bloggers made good content as you did, the web will be a lot more useful than ever before.

  • What i do not realize is in truth how you are not actually a lot more smartly-liked than you may be now. You are very intelligent. You understand thus considerably when it comes to this topic, made me personally consider it from a lot of various angles. Its like men and women don’t seem to be involved except it is one thing to do with Lady gaga! Your own stuffs great. All the time care for it up!

  • I precisely wanted to thank you so much again. I do not know the things that I would have sorted out without the actual information documented by you directly on such question. Completely was a very challenging circumstance in my position, but observing a new specialized avenue you dealt with it took me to cry with delight. I will be thankful for your advice as well as sincerely hope you know what a powerful job you are putting in educating most people thru your web site. I know that you’ve never met all of us.

  • Write more, thats all I have to say. Literally, it seems as though you relied on the video to make your point. You clearly know what youre talking about, why waste your intelligence on just posting videos to your blog when you could be giving us something enlightening to read?

  • I’d should verify with you here. Which isn’t one thing I normally do! I get pleasure from studying a post that can make people think. Also, thanks for allowing me to comment!

  • I’m still learning from you, but I’m trying to achieve my goals. I absolutely love reading all that is written on your site.Keep the tips coming. I enjoyed it!

  • I cling on to listening to the news bulletin talk about getting free online grant applications so I have been looking around for the top site to get one. Could you tell me please, where could i acquire some?

  • Thank you for the sensible critique. Me and my neighbor were just preparing to do some research on this. We got a grab a book from our local library but I think I learned more from this post. I’m very glad to see such wonderful information being shared freely out there.

  • What i don’t understood is actually how you’re not really a lot more well-favored than you may be now. You’re so intelligent. You recognize therefore considerably in relation to this subject, made me in my opinion consider it from numerous various angles. Its like men and women aren’t interested except it is one thing to accomplish with Woman gaga! Your personal stuffs outstanding. Always handle it up!

  • Fantastic beat ! I wish to apprentice while you amend your site, how could i subscribe for a blog web site? The account aided me a acceptable deal. I had been a little bit acquainted of this your broadcast provided bright clear concept

  • There are actually plenty of details like that to take into consideration. That could be a nice level to convey up. I provide the thoughts above as normal inspiration however clearly there are questions like the one you convey up where the most important factor can be working in trustworthy good faith. I don?t know if greatest practices have emerged around issues like that, but I’m certain that your job is clearly identified as a fair game. Both girls and boys really feel the impact of only a moment’s pleasure, for the remainder of their lives.

  • I have to get across my love for your kind-heartedness supporting all those that really want help with the topic. Your personal commitment to passing the solution all around came to be definitely productive and has made others like me to attain their objectives. Your own valuable advice indicates a whole lot a person like me and much more to my colleagues. Many thanks; from all of us.

  • You really make it seem so easy with your presentation but I find this matter to be really something which I think I would never understand. It seems too complex and extremely broad for me. I’m looking forward for your next post, I’ll try to get the hang of it!

  • It’s really a nice and useful piece of information. I am glad that you shared this useful information with us. Please keep us up to date like this. Thanks for sharing.

  • I think other web-site proprietors should take this website as an model, very clean and excellent user friendly style and design, let alone the content. You are an expert in this topic!

  • Terrific work! That is the kind of info that are supposed to be shared across the web. Shame on Google for not positioning this submit upper! Come on over and consult with my web site . Thanks =)

  • Great article and right to the point. I am not sure if this is truly the best place to ask but do you folks have any ideea where to hire some professional writers? Thanks in advance 🙂

  • Have you ever thought about writing an e-book or guest authoring on other websites? I have a blog based upon on the same topics you discuss and would really like to have you share some stories/information. I know my readers would enjoy your work. If you’re even remotely interested, feel free to shoot me an email.

  • Good post. I study one thing more challenging on completely different blogs everyday. It will at all times be stimulating to read content from other writers and apply somewhat one thing from their store. I’d desire to use some with the content material on my blog whether you don’t mind. Natually I’ll give you a hyperlink in your internet blog. Thanks for sharing.

  • Hi there would you mind sharing which blog platform you’re working with? I’m going to start my own blog in the near future but I’m having a hard time selecting between BlogEngine/Wordpress/B2evolution and Drupal. The reason I ask is because your design and style seems different then most blogs and I’m looking for something completely unique. P.S My apologies for getting off-topic but I had to ask!

  • Hiya! Quick question that’s completely off topic. Do you know how to make your site mobile friendly? My blog looks weird when viewing from my apple iphone. I’m trying to find a template or plugin that might be able to fix this issue. If you have any recommendations, please share. Appreciate it!

  • I’m impressed, I have to say. Actually not often do I encounter a blog that’s both educative and entertaining, and let me tell you, you have hit the nail on the head. Your concept is outstanding; the difficulty is one thing that not sufficient persons are talking intelligently about. I am very glad that I stumbled throughout this in my seek for one thing relating to this.

  • Hello there, simply become aware of your weblog thru Google, and found that it’s really informative. I’m going to be careful for brussels. I’ll appreciate for those who continue this in future. Many folks will probably be benefited out of your writing. Cheers!

  • Hello there! Quick question that’s entirely off topic. Do you know how to make your site mobile friendly? My website looks weird when viewing from my iphone. I’m trying to find a template or plugin that might be able to resolve this problem. If you have any suggestions, please share. Cheers!

  • I have noticed that online diploma is getting popular because obtaining your degree online has developed into popular alternative for many people. A large number of people have not necessarily had a chance to attend a regular college or university however seek the increased earning possibilities and a better job that a Bachelor’s Degree provides. Still some others might have a diploma in one discipline but wish to pursue something they now develop an interest in.

  • I do trust all the ideas you have offered to your post. They’re really convincing and can definitely work. Nonetheless, the posts are very brief for starters. Could you please prolong them a little from subsequent time? Thanks for the post.

  • After research study a few of the article on your internet site currently, and I genuinely like your way of blogging. I bookmarked it to my book mark web site checklist as well as will be inspecting back quickly. Please take a look at my web site as well and let me understand what you believe.

  • Hello, Neat post. There’s an issue along with your web site in internet explorer, could check this… IE nonetheless is the market leader and a huge portion of people will pass over your magnificent writing because of this problem.

Comments are closed.

Contact

If you would like further information or require assistance, please get in touch.

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.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer