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Plaintiff Awarded Full Costs and Disbursements Despite 25/75 Liability Split

Helpful reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff full costs and disbursements despite a split of liability.
In today’s case (Ekman v. Cook) the Plaintiff suffered serious injuries in a collision for which fault was disputed.  Liability and quantum were severed and at the liability trial the Court found that the Plaintiff was 75% responsible for the crash with the Defendant bearing the balance of blame.
The parties eventually settled for $135,000 plus taxable costs and disbursements but then could not agree on what these were.  ICBC argued the Plaintiff is only entitled to 25% of these on the basis of the liability split.  Mr. Justice Weatherill disagreed and in awarding full costs to the Plaintiff provided the following reasons:

[7]             Section 3(1) of the Negligence Act, R.S.B.C. 1996, c. 333, sets out what is often referred to as the “usual rule.”  It provides as follows:

3 (1) Unless the court otherwise directs, the liability for costs of the parties to every action is in the same proportion as their respective liability to make good the damage or loss….

28]         In my view, an award to the plaintiff of only 25 percent of his taxable costs and disbursements in this case will result in an injustice.  The defendants forced the plaintiff to trial and to have to incur 100 percent of those costs and disbursements in order to obtain any relief whatsoever. 

[29]         An award of only 25 percent of the plaintiff’s costs when 100 percent of his costs were required to be incurred to achieve the result that he did would have a profound effect on his overall recovery.  In my view, it is appropriate that the defendants be liable to pay those costs.

[30]         Here, the plaintiff achieved substantial success, that, as I have said, would be defeated if costs were awarded in accordance with the usual rule. 

[31]         Accordingly, I am exercising my discretion in favour of the plaintiff, and I am awarding him 100 percent of his taxable costs and disbursements in this matter.

[32]         Had the plaintiff taken the position that he was not contributorily negligent to a significant degree, or had the defendants conceded the possibility of some negligence on their part, it is possible that I would have exercised my discretion in a different fashion.  The plaintiff is entitled to his costs of this application.

[33]         I do want to thank both counsel for their very thorough and helpful submissions.

Ekman v. Cook, Mr. Justice G.C. Weatherill, section 3 negligence act