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Tag: cairns v. gill

Formal Settlement Offers, Costs, and the Flexibility of the New Rules of Court

Interesting reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, discussing the ‘flexibility‘ that the New Rules of Court give Judges in making costs awards following trials where formal settlement offers were made.
In today’s case (Cairns v. Gill) the Plaintiff brought an ‘exaggerated’ personal injury claim to trial following a 2005 motor vehicle collision.  ICBC made an early formal settlement offer in 2006.   ICBC’s offer was modest at just over $1,200 plus costs.   The Plaintiff rejected the offer and proceeded to trial.   The trial did not go well and the Jury largely rejected the Plaintiff’s claim awarding just over $850 in total damages.
Having beaten their formal offer ICBC applied for an order that the Plaintiff pay their post offer Bill of Costs which was expected to exceed $16,000.  Despited the ‘exaggerated’ nature of the claim Madam Justice Arnold-Bailey found that such a result was unjust.  The Court stripped the Plaintiff of her post offer costs and disbursements however did not award ICBC their costs.  In reaching this result the Court provided the following reasons demonstrating the flexible (but perhaps somewhat unpredictable) nature of the current Civil Rules:
[57] The defendants seek costs and disbursements following the date of the offer to settle, despite the plaintiff obtaining judgment.  This is available pursuant to Rule 9-1(5)(d)…

[59] To make such an order would have a very negative effect on the plaintiff, and have the broader effect of further discouraging those with legitimate claims from bringing their actions in this Court when the defendant, funded by an insurer, has deeper pockets with which to bear the risk of a plaintiff achieving only a minor or, indeed, a pyrrhic victory.

[60] It is clear from the rules and the jurisprudence that costs consequences are to guide counsel in litigation decisions.  The object of the Rules is, “to secure the just, speedy and inexpensive determination of every proceeding on its merits.”  This object is to be conducted, as far as is practicable, with regard to proportionality.  While this object is frustrated to some extent by a claim worth $851 proceeding to its conclusion at a Supreme Court jury trial where it was more appropriate for determination in Provincial Court, the object and proportionality principle do not appear to accord with the potential cost of litigation in this case.  The bill of costs of the defendants is expected to exceed $16,000.

[61] I note that the Court of Appeal in Giles recognized when dealing with the issue of double costs that “all litigation comes with a degree of risk,” and that, “when faced with settlement offers, plaintiffs must carefully consider their positions.”  However, the court also indicated that plaintiffs, “should not to be cowed into accepting an unreasonable offer out of fear of being penalized with double costs if they are unable to ‘beat’ that offer.”  These considerations also appear relevant in these circumstances.

[62] In this case, pursuing a valid, although exaggerated, personal injury claim to trial, where the offer to settle did not provide a genuine incentive to settle in the circumstances, may, in the face of a defence funded by ICBC, cost the plaintiff almost twenty times what was awarded at trial.  It seems consistent with the object of the Rules generally, and of Rules 9-1 and 14-1(10), to have regard to the need to emphasize litigation decisions that direct cases to the appropriate forum without disproportionately penalizing a party that had some success, however limited.

[63] To this end, as considered in relation to the first issue, Rule 14-1(10) permits the Court to limit a plaintiff to the recovery of disbursements when the amount of the judgment is within the jurisdiction of the Provincial Court, which I declined to do in this case.  Then, as considered in relation to the second issue, Rule 9-1(5)(a) permits the Court to deprive the plaintiff of any or all of their disbursements after the date of the offer, which I found to be appropriate.  Then, taking the matter even further, Rule 9-1(5)(d) permits the Court to consider requiring the plaintiff to pay the defendants’ costs in respect of some or all of the steps taken after the date of the offer to settle.

[64] This progression demonstrates the flexibility within the overall framework of the rules to craft an order for costs that is appropriate to the circumstances of each case.

[65] In the present case, the plaintiff, although the “successful” party at trial, agreed to forego her costs after the date of service of the offer to settle and is, by virtue of my decision on the second issue, without disbursements from the date of service of the offer to settle, which occurred very early in the proceedings.  To require her to pay all or some of the defendants’ costs after the date of service of the offer to settle, which at the time was an unreasonably low offer, would be excessive and unjust.  It would not be in keeping with the nature of the offer, the relative financial circumstances of the parties, the principle of proportionality, and the need to avoid decisions that inappropriately discourage plaintiffs from pursuing valid claims.

This case is worth reviewing in full for the Court’s length analysis of many authorities to date addressing costs discretion under the new Rules of Court and further addressing important issues such as sufficient reason to sue in Supreme Court, and the relevance of suing an insured defendant.

Jury Trials and Your ICBC Injury Claim

Personal Injury Trials carry a certain element of risk with them.  Typically there are 2 competing medical theories with respect to the extent of injury and connection to trauma.  Additionally there is often disagreement as the value of damages for these injuries by the lawyers involved regardless of which sides medical evidence is accepted.  Furthermore a certain injury can be valued differently by different judges but varying results may be acceptable provided the compensation rests within the conventional range of damages for similar injuries.  All of this adds to the risk of trial and the difficulty of attaching a specific value to any given ICBC claim for pain and suffering.
Injuries can best be valued in ranges and the best one can do to determine the likely range of an ICBC pain and suffering claim is to look to previous court judgements for guidance.   Judges have to give reasons for their verdict, summarize the evidence they accept and award a specific figure for non-pecuniary loss.  If you look up enough similar cases you may be able to come up with a range of potential damages for pain and suffering for categories of injuries.  (click here for a previous discussion of some of the factors that go into valuing pain and suffering in BC tort claims)
Jury trials carry an additional element of risk in BC Personal Injury Claims.   One of the main reasons why jury trials are less predictable than judge alone trials is because jurors are not permitted to be given a range of damages for non-pecuniary loss by the lawyers arguing the case.  The BC Court of Appeal imposed this restriction on lawyers and this remains the law in BC.
In your typical ICBC claim that heads to trial with a jury 8 members of the public with little or no experience attaching a dollar figure to pain and suffering will be asked to value a Plaintiff’s injury.  These 8 members of the public will not be given guidance from the Court or from the lawyers involved as to what an appropriate range of damages is.  This may sound strange but its true.  Without referencing precedent its easy to understand how different juries can have wild swings in the amount of money they award a plaintiff for pain and suffering in an ICBC injury claim.
Reasons for judgement were released today by the BC Supreme Court illustrating the type of low award juries can award in ICBC Claims.
In today’s case (Cairns v. Gill) the Plaintiff sued for damages as a result of a 2005 BC Car Crash.  Madam Justice Gill, the presiding trial judge, summarized the evidence led by the Plaintiff at trial as follows:

[3]           The injuries sustained by the plaintiff were, in a relative sense, of a minor nature.  Ms. Cairns testified that her neck was sore immediately after the accident and she developed a headache.  By the next day, she also had pain in her shoulders.  She went to a drop-in clinic and was given a referral to massage therapy, but she did not attend because such therapy had not assisted in the past.  Some time after the accident, she began to feel pain in her low back.  It was Ms. Cairns’ evidence that her headaches lasted for several months and her neck and shoulder pain persisted for approximately one year.  Her low back pain resolved approximately a year and a half after the accident.  As to the frequency of her pain over the periods in question, she testified that she had pain on a daily basis for one or two weeks and thereafter, it came and went.

[4]           Ms. Cairns testified that her injuries precluded her from engaging in certain activities such as walking, running and attending aqua fit classes and affected her ability to lift and carry.  Her inability to engage in pre-accident activities also led to weight gain.  At the time of the accident she was employed at The Brick and was attending university.  It was her evidence that she missed two days from work, one immediately after the accident and the second, some time later. 

 In today’s case the jury awarded a mere $500 for the Plaintiff’s pain and suffering.  Granted it is unknown whether the jury accepted or rejected the Plaintiff’s evidence of injury, however, assuming it was accepted one would be hard pressed to find a judgement this low by a BC Supreme Court judge for similar injuries.

Perhaps if the jury was given a range of damages for similar injuries the Plaintiff would have received a better result.  Perhaps if the jurors knew what was typically awarded for such injuries their award would have been in the more conventional range.   Maybe none of this would have made a difference in the Plaintiff’s case but it just seems to make good sense to let juries have the same information judges have when it comes to valuing pain and suffering.  What are your thoughts?