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Plaintiff Awarded Costs Despite Jury Awarding Damages Far Less than ICBC Formal Setttlement Offer

Reasons for judgement were published today by the BC Supreme Court, Penticton Registry, dismissing a defence application for costs and awarding a Plaintiff full costs despite receiving a jury award substantially smaller than a pre trial formal settlement offer.

In today’s case (Duarte v. McMillan) the Plaintiff was injured in a 2016 collision that the Defendant accepted fault for.  The matter proceeded to trial by Jury, an election made by ICBC on the Defendants behalf.

Prior to trial the Plaintiff made a formal settlement offer for $175,000.  The Defendant made several formal offers with the highest being $88,000 plus costs.  At trial the jury awarded far less with global damages being assessed at $22,000 being comprised of $7,300 for costs of future care and loss of homemaking capacity and $14,700 for non-pecuniary damages.

ICBC sought to have the Plaintiff pay costs.  The court declined and instead awarded the Plaintiff full costs finding with the evidence available it was reasonable to reject the settlement offer and proceed to trial.  In reaching this decision Madam Justice McDonald provided the following reasons:

[28]       In the present case, expert reports prepared on behalf of the plaintiff contained opinions that generally supported his allegations of injury. It is true that the experts disagreed with each other regarding the diagnosis, prognosis and causation of many of the plaintiff’s injuries, but that is not unusual.

[29]       Regarding the plaintiff’s credibility, the most significant issue in that regard appeared to involve his self-reporting of the symptoms he experienced during and immediately after the Accident. In my view, the plaintiff’s evidence on this issue did not point to a general lack of credibility or untruthfulness on the plaintiff’s part.

[30]       The experts provided diverging opinions regarding the implications of the plaintiff’s symptoms. For example, some experts suggested that the plaintiff experienced a concussion or loss of consciousness in the Accident. Another expert, Dr. Solomons, strongly disagreed. It is true that there was some inherent risk that a jury might disbelieve the plaintiff’s evidence regarding his symptoms. However, I cannot say that the plaintiff was unreasonable in taking that risk.

[31]       After considering the evidence as a whole and the authorities, I am unable to conclude that the plaintiff lacked a basis for reasonable confidence in his claim. Further, I am unable to fault the plaintiff for proceeding to trial in the hope of achieving an award greater than the amount in the offer:  Bains v. Antle, 2019 BCCA 383 at para. 36.

[32]       In short, I disagree with the defendants that a careful review of the evidence should have alerted the plaintiff that he faced a significant risk of being unable to prove causation for his injuries.  

[33]       The $88,000 that was offered to the plaintiff is obviously more than the $22,000 he was awarded at trial. That fact favours the defendants; however, the relationship between the terms of the settlement offer and the amount of the final judgment is not determinative: Smagh v. Bumbrah, 2009 BCSC 623 at para. 13.

[34]       In my view, the relative size of the final settlement offer is a factor that weighs in favour of the defendants’ position, but it is not determinative.

[35]       The plaintiff is a pensioner with a modest income who owns his own home. The defendants submit that the plaintiff likely spent more money than the defendants preparing for trial, since the plaintiff brought more experts to the trial.

[36]       However, both of the parties submit that the issue of their relative financial circumstances is a neutral factor. I agree with that submission. I have no evidence that either party’s financial resources influenced the litigation one way or another.

[37]       The plaintiff urges me to consider the timing of this trial in relation to ICBC’s public statements around the same time regarding the rising cost of insurance premiums and ICBC’s finances. The plaintiff’s counsel pointed out that on the penultimate day of the trial, the provincial government announced a transition to a no-fault insurance model. In the plaintiff’s view, this is likely to have influenced the jury and made it more difficult for the plaintiff to succeed at trial.   

[38]       The difficulty I have with the plaintiff’s submission on this issue is the suggestion that the public statements, which are not in evidence, ought to be assumed to have influenced the jury negatively against the plaintiff. I am unable to make that leap without some evidence.

[39]       One additional factor to consider is that the defendants filed the jury notice, not the plaintiff. Assessing the decision to settle may be more nuanced in cases involving jury trials:  Mitchell, at para. 31. Related to that factor is that the jury award in this case (i.e. $14,700 for non-pecuniary damages), may be low relative to judge-alone decisions made in other cases involving comparable injuries:  Mitchell, at para. 32. In my view, this favours the plaintiff being entitled to his costs.

[40]       After considering the factors set out in Rule 9-1(6), I find that it is not appropriate to deny the plaintiff his costs. Therefore, I award the plaintiff costs of the entire proceeding.

Duarte v. McMillan, Madam Justice McDonald, Rule 9, Rule 9-1, Rule 9-1(5)