Late Offer to “Emotionally and Mentally Fragile” Plaintiff Fails To Trigger Costs Consequences

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, declining to award a Defendant trial costs despite the Plaintiff receiving judgement for less than their pre trial settlement offers.

In today’s case (Wiseman v. Wang) the Plaintiff was injured in a collision and sued for damages.  Prior to a February 19, 2019 trial the Defendant made two formal settlement offers.  On June 13, 2018 the Defendant offered to settle the plaintiff’s claims for $100,000 new money plus costs and was open for acceptance until 4:00 pm on the last business day prior to the commencement of trial.  A second offer was delivered on February 13, 2019 and offered to settle the plaintiff’s claims for $150,000 new money plus costs. It was also open for acceptance until 4:00 pm on the last business day before the commencement of trial.

At trial the Plaintiff’s damages were assessed at $79,000.  The Court noted that trial “could have resulted in a much higher award” but reliability problems with the Plaintiff’s own evidence prevented a more favourable result.

The Defendant sought trial costs in these circumstances but the Court declined.  In dismissing the defence application the Court noted that the Plaintiff was ‘emotionally and mentally fragile‘ and the timing of the second offer made it such that costs consequences should not be triggered.  Mr. Justice Davies provided the following reasons:

[13]       The first offer was delivered before any expert reports were obtained and while the offer remained open for approximately two months after the exchange of reports was completed, I am not satisfied that given the contents of the reports filed by Ms. Wiseman, especially that of Dr. Helmer the psychiatrist upon which she so heavily relied, that she ought reasonably have accepted the first offer before it was revoked by the making of the second offer on February 13, 2019. Although in retrospect I found Dr. Helmer’s opinions to be of little assistance largely due to Ms. Wiseman’s lack of credibility, the fact that the defendants had filed only a critique of his opinions, and had not obtained or filed an independent medical examination in which another psychiatrist had examined Ms. Wiseman does not make her failure to accept the first offer unreasonable.

[14]       Similarly, although the second offer increased the settlement amount by $50,000 the frailties in Dr. Helmer’s opinions were not exposed until Ms. Wiseman’s lack of credibility was exposed during her lengthy testimony. To that extent I must also observe that although Ms. Wiseman’s own testimony was the primary reason for the limited damage award she received she did adduce other evidence that had her own evidence been more reliable could have resulted in a much higher award. It therefore seems to me that the defendant is in large measure relying upon hindsight based upon determinations of credibility that occurred at trial in making these costs submissions.

[15]       More significant, however, with respect to Ms. Wiseman’s failure to accept the second offer is the timing of the offer and the circumstances in which it was delivered.

[16]       The second offer was only open for acceptance for less than two days. The defendant knew that Ms. Wiseman lived in Saskatchewan and was travelling to Vancouver for trial. The defendant also knew that Ms. Wiseman was an emotionally and mentally fragile individual.

[17]       In those circumstances there was in my view insufficient time for Ms. Wiseman and her counsel to reasonably evaluate the second offer and her failure to accept it was therefore not unreasonable.

[18]       The defendant’s application is dismissed.