Tag: Ben-Yosef v. Dasanjh

Plaintiff Stripped of Trial Costs Following Judgement Below Settlement Offer

Reasons for judgement were released today stripping a plaintiff of trial costs and further ordering the Plaintiff to pay the Defendants trial costs after failing to beat a defense formal settlement offer at trial.
In today’s case (Ben-Yosef v. Dasanjh) the Plaintiff was struck in 2011 by the Defendant’s vehicle while crossing a cross-walk.  The Plaintiff suffered from a pre-existing and longstanding chronic pain disorder.    The collision resulted in soft tissue injuries and aggravated the pre-existing condition.
Prior to trial ICBC offered to settle the claim for $70,000.  The Plaintiff declined this offer and proceeded to trial where damages of just over $32,000 were assessed.
In finding the pre trial offer reasonable and attaching costs consequences for failing to beat it Mr. Justice Bowden provided the following reasons:

[8]             The rules on costs are intended to encourage the early settlement of disputes by rewarding the party who makes a reasonable settlement offer and penalizing the party who declines to accept such an offer. (Hartshorne v. Hartshorne, (2011 BCCA 29)

[9]             In considering whether the offer to settle was one that ought reasonably to have been accepted the circumstances that existed at the time the offer was made should be considered rather than the award that was made using hindsight.

[10]         At the time the offer was made there is no suggestion that the plaintiff was not ready for trial. By that time examinations for discovery would have been completed and documents exchanged along with expert medical reports. In my view, the parties were in as good as a position as they would ever be to assess the relative strengths and weaknesses of the case. (See the comments of Fleming J. in White v. Wang, 2015 BCSC 1080 at para. 10)

[11]         The plaintiff had four business days and a weekend to consider the offer of the defendants and presumably discussed the merits of accepting the offer with his counsel. The defendants’ offer was rejected and no counter-offer was made.

[12]         Fleming J. referred to comments by Griffin J. in Bevacqua v. Yaworski, 2013 BCSC 29, regarding the process at para. 8:

In personal injury claims, in which liability has been admitted, there is in most cases a somewhat predictable range of possible awards. It is to be expected that counsel taking a case to trial will have discussed with their clients the possible range of damages, the evidentiary issues and the risks of and expense of proceeding to trial. It is to be expected therefore that as the trial approaches, counsel and their client have in mind a possible range of recovery and the risks of litigating. Naturally, a plaintiff hopes for an award in the high end of the range and the defendant for an award at the low end.

[13]         In that case the plaintiff was deprived of costs when the defendant delivered an offer to settle on the eve of trial.

[14]         While I understand that the plaintiff attended his daughter’s wedding on the weekend following the making of the offer, there is no suggestion that the plaintiff and his counsel had any difficulty discussing the offer before it expired.

[15]         The offer by the defendants was more than twice the amount that was awarded to the plaintiff.

[16]         As to the relative financial circumstances of the parties other than understanding that the plaintiff has not been employed for some period of time there was no evidence upon which to determine what the financial impact of the cost award sought by the defendants would be on the plaintiff.

[17]         Having considered the factors mentioned and the circumstances of this case, I have concluded that the plaintiff should be deprived of costs from the date of the offer to settle by the defendants until the end of the trial and costs shall be awarded to the defendants for that period.


$30,000 Non-Pecuniary Assessment for Aggravation of Chronic Pain

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for the aggravation of a long standing chronic pain disorder.
In today’s case (Ben-Yosef v. Dasanjh) the Plaintiff was struck in 2011 by the Defendant’s vehicle while crossing a cross-walk.  The Plaintiff suffered from a pre-existing and longstanding chronic pain disorder.    The collision resulted in soft tissue injuries and aggravated the pre-existing condition.  In assessing non-pecuniary damages at $30,000 Mr. Justice Bowden provided the following reasons:

[52]        I am not prepared to attach much weight to the plaintiff’s description of the change in his condition following the 2011 accident without corroboration from someone other than Ms. Ben-Yosef and their son.

[53]        The evidence shows that the majority of the symptoms that the plaintiff attributes to injuries from the 2011 accident probably were present before that accident. The expert evidence is that the plaintiff was suffering from chronic pain syndrome before the 2011 accident. It appears that he was taking anti-inflammatory drugs before that accident as well as medication for hypertension and pain.

[54]        The 2011 accident was not significant. While the plaintiff was knocked down in a cross walk, he described the event to his family doctor as being “bumped”. He said that he got up, exchanged information with the defendant and then continued on his way to do some shopping before going home.

[55]        Nevertheless, I accept that the plaintiff suffered some soft tissue injuries to his lower back and left hip and that the 2011 accident caused some aggravation to his pre-existing chronic pain…

[60]        While I accept that the plaintiff’s pre-existing condition was somewhat aggravated by the 2011 accident, he had developed chronic pain syndrome before that accident presumably following his injuries in the 1998 accident. Some of his continuing symptoms also appear to be related to the degeneration which has occurred in his spine which is unrelated to the 2011 accident.

[61]        It is difficult to differentiate the impact of the 1998 accident and the 2011 accident on the plaintiff’s quality and enjoyment of life. It appears that the 1998 accident left him unable to work, caused him intermittent pain that ultimately became chronic and limited his activities. The 2011 accident aggravated his condition somewhat but the degree of aggravation cannot be determined with any certainty.

[62]        I have concluded that in the circumstances of this case and considering the factors in Athey, an award of $30,000 is appropriate.


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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.

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