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Navigating the Minefield – BCCA on Improper Opening and Closing Statements in Jury Trials

One role lawyers have in Injury Litigation is to persuasively advance their clients case and this extends to opening statements and closing arguments at trial.  Sometimes, however, lawyers become caught up in the moment and cross the line in their remarks to a jury and this can lead to a mistrial.  Reasons for judgement were released today by the BC Court of Appeal reviewing this area of the law.
In today’s case (Knauf v. Chao) the Plaintiff was involved in two Motor Vehicle Collisions in 2002.  The Plaintiff was injured in both crashes.  The Plaintiff’s claim proceeded to trial and the Jury awarded just over $500,000 in total compensation for her injuries including an award of $235,000 for non-pecuniary damages.
The Defendants appealed the judgement arguing in part that the trial was unfair because the Plaintiff’s lawyer made improper statements in his opening and closing submissions to the Jury.  The BC Court of Appeal agreed with this submission and found that the Jury’s award for non-pecuniary damages was excessive.  The Court reduced the jury’s award by $100,000.  In doing so the court made some useful comments with respect to the Plaintiff’s lawyers submissions which are worth reviewing.
During the trial the Plaintiff called an expert witness who conducted a functional capacity assessment of the Plaintiff’s abilities.  In doing so the expert used some validity tests which are used to measure the consistency of effort applied by the Plaintiff.  When the expert gave evidence the results of the validity testing was discussed.  In short the validity testing showed consistent effort throughout the assessment.  In closing arguments, the Plaintiff’s lawyer commented on this evidence and stated as follows ” She was consistent throughout.  What she said and what the test result showed were the same.  She wasn’t exaggerating; she wasn’t saying she was in pain when the test results showed differently.  She was consistent. And that’s what those tests were designed to do to show if what she told Mr. Pakulak, if what she told her doctor, what she told you was real and legitimate.”
The Court of Appeal took no issue with the validity testing but held that the Lawyers comments were improper.  Mr. Justice Tysoe held as follows: “In my opinion, there is nothing objectionable about validity testing per se.  It goes to the reliability of the opinion expressed by the expert and the weight to be given to it by the trier of fact.  That is a proper purpose…However, the remark made by the plaintiff’s counsel in his closing address to the jury was clearly improper (this was conceded on appeal by counsel for the plaintiff, who was not counsel at trial).  The plaintiff’s counsel effectively told the jury that they could use Mr. Pakulak’s evidence for the improper purpose of oath-helping.  This was not corrected by an instruction in the charge to the jury.”
The Court then went on to highlight some further statements made by the Plaintiff’s lawyer and reproduced the following exerpts at paragraphs 39-40:

[39] The opening statement made by the plaintiff’s counsel to the jury included the following (with the comments the defendants say are objectionable emphasized by me):

The statements of defence that were filed on behalf of the defendants say they are not responsible, and this confused and upset Ms. Knauf. … Responsibility was still denied, that is until last Friday, six years after these accidents, when the defendants’ lawyer told us that they now admit responsibility; …

Ms. Knauf comes to court to ask you to fix the harm that was done to her on those two days in 2002.

Ms. Knauf lost her ability to make good money as a waitress and save to buy a home back when prices were still reasonable.  These accidents were six years ago and Ms. Knauf had already saved — and by coincidence the figure is $6,000.  She’d already saved that from the time a year before the accident when she started working as a waitress….

Ms. Knauf has not collected any disability benefits or sick benefits or social assistance because of her injuries.  She’s a worker. She’s struggling in an expensive city and wants to work not less but more.

[40] His closing address included the following (with the similar added emphasis):

It took six years for the defendants to acknowledge their responsibility for these accidents. We are now here, not for sympathy, but to collect the debt that is owed to Ms. Knauf and the rules require that that debt be paid.

Ms. Knauf does not stay at home and whine.  She has not collected disability benefits; she has not collected welfare; she’s not collected employment insurance or any benefits because of her injuries.

Now, Ms. Knauf has had to deal with other problems, big, difficult problems:  the death of her mother; an unrelated knee problem; her marriage. Don’t be sidetracked by those issues.

I said that we’re here to collect a debt, a debt that is owed to Ms. Knauf by the defendants.  That debt is compensation for the harm and the losses that they caused her. …You’re not to consider any outside reasons.  The rules don’t allow that.  You’re only to consider the losses and the harms that were suffered by Ms. Knauf, nothing else. If any of you consider any outside reasons, you’re breaking the rules and everyone here has to follow the rules.

You’re going to be asked about special damages.  That’s the money that Ms. Knauf spent on treatment.  That’s Exhibit 1.  It’s just under $6,000 and those amounts were not challenged.  And it’s a coincidence, perhaps a sad coincidence, that the money Ms. Knauf has spent on her own treatment these last six years is about equal to what she had saved up hoping to buy her own home at the time of these accidents.

The Court of Appeal concluded that these comments were improper and provided the following guiding comments:

Some of the comments made by the plaintiff’s counsel were irrelevant and appeared to be designed to arouse hostility against the defendants.  Others appeared to be designed to appeal to the emotions of the jury or otherwise engender sympathy for the plaintiff.  Counsel improperly stated that his client was owed a debt by the defendants.  He improperly suggested to the jury members that they would be “sidetracked” or “breaking the rules” if they considered the death of the plaintiff’s mother, the injury of her knee or her unsuccessful marriage, all of which were relevant to the state of her health or enjoyment of amenities.

[43] The plaintiff concedes that some of the comments made by her counsel at trial were unfortunate or improper, but says there were no exceptional circumstances warranting interference by this Court in view of the lack of objection by the defendants’ counsel.  I do not agree.  The effect of the improper comments is manifested in the jury’s award for non-pecuniary damages, which, as I will discuss under the next heading, was wholly disproportionate and constitutes a substantial wrong.

The Court went on to reduce the Jury’s award of non-pecuniary damages by $100,000 but pointed out that if the Defence lawyers objected during trial a mistrial may have been an appropriate remedy.

As trial lawyers know it is a fine line distinguishing between what comments are persuasive and which cross the line to improper.  Cases such as this will continue to add clarity and help trial lawyers navigate the minefield of Jury Trials.

ICBC Claims and Cross Examination of Experts at Trial

In ICBC Injury Claims that proceed to trial there are often 2 competing medical theories with respect to the cause and extent of injury.  Typically Plaintiff’s rely on the opinions of their treating physicans and sometimes the opinions of Indepmendent Medical Examiners. ICBC, on behalf of the Defendant, usually rely on the opinions of an independent physician who examines the Plaintiff pursuant to Rule 30 of the BC Supreme Court Rules.
When the conflicting expert evidence is presented at trial the lawyers can cross examine the opposing expert(s) opinion.  This process can be a powerful tool in helping the judge or jury decide whose opinion should be preferred and given more weight.  What happens if the expert is not cross-examined?  Does that experts opinion carry more weight with the court? Reasons for judgement were released today by the BC Supreme Court (Yip v. Chin) dealing with this issue.
In today’s case the Plaintiff sued for injuries cuased in a 2006 Car Crash which took place in Vancouver, BC.  The Plaintiff suffered from a pre-existing degenerative condition and suffered soft tissue injuries in the crash.  One of the key issues at trial was whether the Car Crash had any effect on the Plaintiff’s pre-existing degenerative arthritis.
The Plaintiff’s physicain feld that this pre-existing condition was aggravated by the car crash.  The doctor hired by the Defendant, Dr. Schweigel, disagreed.  Dr. Schweigel’s report was intorduced into evidence unchallenged by the Plaintiff.  Ulimately the Court preferred Dr. Schweigel’s opinion on this narrow issue.  Mr. Justice Voith summarized and applied the law as follows with respect to the failure to cross-examine an expert witness at trial:

[30]            The evidence of both Dr. Lui and Dr. Schweigel was consistent in concluding that at the time of the Accident Mr. Yip suffered from some degenerative arthritis of the cervical spine.  The two experts differed, however, on the significance of this pre-existing condition and on whether the Accident caused this condition to be aggravated.

[31]            The plaintiff chose not to cross-examine Dr. Schweigel.  This decision places different parts of Dr. Schweigel’s reports in different categories and requires different treatment by the court.  Some portions of Dr. Schweigel’s reports stand uncontradicted in that no part of the evidence led by the plaintiff takes issue with the opinions expressed by Dr. Schweigel.  Other portions of his reports are inconsistent, for example, with the report of Dr. Lui or with the evidence of Dr. Lui and Dr. Leung.

[32]            For lay witnesses, the case of Browne v. Dunn (1893), 6 R. 67 (H.L.) provides well understood guidance on the consequences that flow from the failure of a party to cross-examine on a given issue or to put given propositions to a witness.  The rule arising from that case is one which is designed to ensure that witnesses and the parties are treated fairly.

[33]            Failure to cross-examine an expert on a contested issue gives rise to additional concerns or difficulty.  The very object of proffering expert evidence is to assist the trier of fact with the necessary scientific basis upon which to assess evidence.  Inherent in the fact that evidence has been tendered by an expert, is the proposition that the trier of fact is generally neither conversant nor familiar with the subject matter of the evidence and lacks the independent means by which to weigh or measure the merits of two competing views.

[34]            In this instance, for example, Dr. Lui expressed the view that Mr. Yip’s ongoing degenerative problems of the spine were likely aggravated by the Accident.  This conclusion is apparently based on differences that exist in an initial x-ray taken in July 2006 which showed degenerative changes at C6-7 only and a subsequent CT scan performed on October 2007 which showed degenerative changes involving C3-4, C4-5, and C5-6 as well.

[35]            Dr. Schweigel’s report, conversely, expresses the view that these changes are attributable to the additional sophistication of the CT scan.  In Dr. Schweigel’s view, a CT scan will routinely pick up abnormalities which are missed by an x-ray.  Dr. Lui, in his cross-examination, firmly disagreed with this conclusion.  The court did not have benefit of any further explanation from Dr. Schweigel.  The trier of fact is thus left with two competing views, one of which, though contradicted, remains unchallenged by cross-examination.

[36]            No inflexible rule can be established as to the significance of a party failing to cross-examine an expert.  Sometimes a party will be aware that the expert will not resile from his position and cross-examination would be futile.  Thus, in Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44 (C.A.) at 49, the Court said in relation to a notional cross-examination, “It may be a mere show.  The law of evidence does not require counsel to engage in a charade”.

[37]            In this instance, I believe it is appropriate to attach some weight or significance to the fact that Dr. Schweigel’s report was introduced without any part of its contents being tested further.  This is not a case of a party failing to cross-examine on a particular portion of the report.  This is an instance of the plaintiff deciding to leave untested all of the various opinions which are offered in relation to a number of issues, notwithstanding the fact that such opinions are often at odds with the evidence tendered by the plaintiff.

More from BCSC on Rule 37B and ICBC Claims

Reasons for judgement were released today (Lumanian v. Sadler) by the BC Supreme Court giving further consideration to Rule 37B in an ICBC claim.
In this case ICBC made a settlement offer before trial.  The Plaintiff proceeded to trial and ultimately received judgement below ICBC’s formal offer.  In an application for costs the court refused to award ICBC costs or double costs but did deprive the Plaintiff of costs from the date of the offer onward.
The court’s key reasons are set out below.


[17]            ICBC presented a formal offer to settle on May 23, 2008, in the amount of $110,000 “after taking into account Part 7 benefits paid or payable,” and any advances, plus costs and taxable disbursements.  There is no disagreement that the plaintiff should get 75% of her costs up to May 23, 2008. 

[18]            The plaintiff submits she should have 75% of her costs to the end of trial; or in the alternative, that each party should bear its own costs after the date of the offer.  The defendant seeks double costs for all steps in the proceeding after May 23, 2008.

[19]            There is no dispute that the offer was a valid offer to settle within the terms of Rule 37, notwithstanding an issue that I will address below.

[20]            The relevant subsections of Rule 37B for the purposes of this application are:

(4)        The court may consider an offer to settle when exercising the court’s discretion in relation to costs.

(5)        In a proceeding in which an offer to settle has been made, the court may do one or both of the following:

(a)        deprive a party, in whole or in part, of costs to which the party would otherwise be entitled in respect of the steps taken in the proceeding after the date of delivery of the offer to settle;

(b)        award double costs of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle.

(6)        In making an order under subrule (5), the court may consider the following:

(a)        whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on any later date;

(b)        the relationship between the terms of settlement offered and the final judgment of the court;

(c)        the relative financial circumstances of the parties;

(d)        any other factor the court considers appropriate.

[21]            Recent decisions on this new Rule are clear that the court’s discretion is now unfettered, but that the underlying purpose of the old rule – encouraging settlement through the use of costs — remains an important objective.

[22]            The amount the plaintiff will receive as a result of the judgment is approximately $81,000 before deductions.  The settlement offer was $110,000 plus costs.  ICBC submits that the result at trial was a significant win for them, and that the plaintiff, having rejected their reasonable offer, assumed the risk of cost ramifications and should pay double costs as a result.

Ought the offer to have been accepted?/Relationship to final judgment

[23]            Although Rule 37B(5)(a) and (b) separate the issues of “reasonable acceptance” and “relationship between the offer and the final judgment,” in the circumstances here, where the plaintiff received a substantial award but one which is less than the offer, it is in my view appropriate to consider these factors together.  The offer was for $110,000; the award at trial will be between $70,000 and $80,000, depending on deductions, and the plaintiff retains the potential to claim Part 7 benefits up to approximately $138,000.

[24]            Argument on this issue proceeded on the basis that the plaintiff would have been required, if she had accepted the offer, to sign a release of her Part 7 benefits.  I requested further submissions on that aspect of the argument, based on the decision of the Court of Appeal in Anderson v. Routbard, 2007 BCCA 193, 239 B.C.A.C. 98, in which a similarly worded offer was held to be clear and unambiguous, and was deliberately drafted to ensure that full access to Part 7 benefits remained unimpaired by acceptance of the offer.  Although the legislation makes no such differentiation, the Court of Appeal decided in that case that the use of the word “payable” in these offers means only those Part 7 claims that have been submitted and are outstanding at the time of the offer, leaving the rest of the potential Part 7 fund available to be claimed.

[25]            Counsel for ICBC now acknowledges that she was in error in submitting that the plaintiff would have been required to sign a release before accepting the offer, although she says it is common practice to settle both claims at once. 

[26]            Counsel for the plaintiff says it was clear in all negotiations concerning this matter that ICBC would require a release of both the tort and Part 7 claims if the offer were accepted.  He does not go on to say that the offer itself is unclear in these circumstances, but says the issue of the reasonableness of rejecting the offer should be analyzed on the basis that such a release would have been required.  Counsel for ICBC disputes plaintiff’s counsel’s assertion that there was an understanding that acceptance of the offer was predicated on a release of Part 7 claims.

[27]            Although in law the plaintiff would not have been required to sign a release of Part 7 benefits as a term of accepting the offer, it appears from the positions of both counsel during oral argument and even from the subsequent written submissions that in the course of settlement negotiations, they both understood that a release would have been required.  To resolve the dispute between counsel as to their respective understandings of whether the provision of a release would also have been a condition of the acceptance of the formal offer to settle would require counsel to provide additional information about their discussions and the settlement process.  It might even require counsel to give evidence.  This application for costs risks being complicated unproductively by such an examination, which would only add expense to the proceeding.   

[28]            Since I have found that the amount of future care costs is low, I will proceed on the basis that the issue of Part 7 benefits would not be conclusive either way in the assessment of whether or not the offer ought reasonably to have been accepted.

[29]            ICBC says the plaintiff was unreasonable in rejecting the offer.  She was obviously able to quantify her claim by the time the offer came in, as she submitted her own offer to settle for $185,000 the day before.  ICBC then put in its offer, and also participated in mediation which the plaintiff instigated. 

[30]            Plaintiff’s counsel says he had medical and other expert reports backing up his client’s position, and to accept the offer would have meant ignoring all their evidence.  Counsel for ICBC responds quite properly that a consideration of an offer does not mean that a party must ignore its own evidence; instead it requires an assessment of whether the offer is reasonable and this requires a realistic look at the whole case.    

[31]            A significant difference between the plaintiff’s position at trial and the amount of the award is in the area of future care costs, and this is reflected in the disparity between the plaintiff’s own offer and the result at trial.  A trial judge is required to look into a crystal ball and assess future care costs for the tort claim based on the evidence adduced at trial, and then to look even further and assess future contractual Part 7 claims that might be made by the plaintiff insured against its insurer for the purpose of deductions from the tort award.  This is an exercise fraught with uncertainty and potential unfairness, especially for a plaintiff like Ms. Lumanlan, whose future care costs are not clear and are contingent on whether and to what extent she develops arthritis, whether she moves into a house, whether she assumes care of her son (which she now deposes she is attempting to do), and what career she decides to pursue.  She is young; her future plans are uncertain.  Prior to the accident she had two good hands.  Now she does not.

[32]            As counsel for the plaintiff pointed out, this type of claim for future care, unlike one where no future care is required, or one where significant future care is required, is difficult to assess. 

[33]            The court in this tort action was circumscribed by the lack of evidence, and by its duty to be fair to both the plaintiff and the defendant, which prevents speculation unsupported by evidence.  In terms of her relationship with her own insurer, however, within the Part 7 context, the plaintiff may well have to make claims in the future under her insurance contract as she matures and gains perspective on her limitations, especially if the court is shown, by the crystallization of events in the future, to have been unfairly limited by the lack of evidence at the tort trial.

[34]            The result at trial was not dismissal of the action; Ms. Lumanlan obtained a not insignificant award.  She suffered extensive damage to her hand.  She was uncomplaining and not particularly adept at putting forth her evidence, and these limitations did not accrue to her advantage, but she did have a serious claim to advance.

[35]            As well, an assessment of non-pecuniary damages, as every trial judge knows, is a difficult and somewhat subjective task, as hard as one tries to be consistent with other judgments.  A jury verdict can, of course, be even more disparate when compared to assessments by judges.  In my view, one should be cautious, with the advantage of hindsight, in equating having guessed wrongly with having been unreasonable in rejecting an offer, especially when the plaintiff receives a substantial award at trial.

[36]            In Bailey v. Jang, 2008 BCSC 1372, the plaintiff’s entire claim was dismissed by a jury.  Nevertheless, the trial judge held that he was unable to say she had been unreasonable in rejecting the offer.  Rule 37B is worded in the affirmative.  It is suggested that the court may consider “whether the offer … ought reasonably to have been accepted,” not whether the plaintiff was unreasonable in rejecting it.  Nevertheless, given the broad discretion now existing in the section, I am of the view that the important conclusion to be taken from that decision is that this consideration is not one to be done with “hindsight analysis.”

[37]            The trial judge in that case held that dismissal of the claim was not determinative of the reasonableness of rejection of the offer.  Conversely, however, in my view, the size of the award at trial may offer some assistance in assessing the reasonableness of the plaintiff’s position at the time the offer was made.  Here, the award was significant, although not as high as the offer. 

[38]            Bearing in mind the above considerations and the relationship between the offer and the eventual award at trial, I am unable to say in all these circumstances that the plaintiff, who did not have the benefit of hindsight, ought reasonably to have accepted the offer at the time it was made and prior to the commencement of the trial.

Financial circumstances

[39]            ICBC submits that the relative financial circumstances of the parties should be at best a neutral factor.  Although they defended the action, it is really the defendant whose finances are relevant.  They will pursue their expenses against him.

[40]            The plaintiff submits that ICBC was the party who conducted the litigation, and they did so because the defendant breached his insurance by driving dangerously and injuring the plaintiff.

[41]            The fact that the defendant will have to pay ICBC back because he breached his contract through conduct which also resulted in the plaintiff’s injury should not be used to her detriment.  However, I agree with counsel for the Third Party that it is not reasonable to compare the plaintiff’s financial circumstances to those of ICBC, even where ICBC has entered the action as a Third Party.

[42]            The plaintiff deposes that she continues to make the salary she made at trial, that is $8.00 an hour, and she has moved out of her parents’ house to live with a friend temporarily while she asserts custody/access rights to her son, who is now cared for by her mother.

[43]            The defendant, 26, is presently unemployed but intends to look for work as a heavy machine operator, which has been his employment since he was 16, when he gets his licence back later in 2009.

[44]            There is not a sufficient imbalance in the parties’ relative financial circumstances to make this a significant factor in the present analysis.

Other factors

[45]            The plaintiff has presented a draft bill of costs to show what a substantial penalty she should incur if forced to pay double costs to the defendant for steps taken after the offer to settle.  It would indeed substantially deplete her award. 

[46]            In Bailey v. Jang, supra, double costs were awarded to the defendant under the new rule, even though the judge held that the offer was not rejected unreasonably, on the basis that to fail to do so would ignore the deterrent effect of the rule.  There, the defendants had made an offer to settle of $35,000 and the jury dismissed the plaintiff’s claim entirely. 

[47]            Obviously, in the case at bar, the plaintiff’s claim was not dismissed.  She received an award that is reasonably close to the offer, until reduced by contributory negligence.  Under Rule 37(24)(b), which was in effect when the offer was presented, the defendants would have been entitled to double costs only if the action had been dismissed.

[48]            ICBC argues that the plaintiff’s failure to acknowledge any contributory negligence was a barrier to settlement.  The plaintiff did indeed pursue that position at trial.

[49]            Counsel for the plaintiff takes the position that the mistake regarding the requirement for a release, which he contends was mutual and which counsel for ICBC contends was not, is another factor to consider.  It is unfortunate that this dispute has arisen and remains unresolved, but as I stated earlier, the ultimate significance of future care claims is small.

Result on costs

[50]            Whether or not the plaintiff was under the impression that she would have had to release future Part 7 benefits to accept the offer, it is apparent that she would have to establish entitlement to some $30,000 to $40,000 worth of Part 7 benefits to attain the amount of the offer, and she would, of course, have received taxable costs and disbursements.  This is all without regard to her own legal costs, which obviously increased through the trial.

[51]            Nevertheless, I have concluded that the plaintiff’s decision not to accept the offer was reasonable at the time, and although the award at trial was less than the offer, it was still substantial. 

[52]            Although the use of hindsight is not appropriate in the consideration of the reasonableness of accepting/rejecting the offer, an overall analysis of all of the factors under Rule 37B must be done with the advantage of hindsight, also keeping in mind the court’s unfettered discretion.  From that perspective, the plaintiff would have been better off if she had accepted the offer.  Her position on some aspects of the trial, such as contributory negligence, appears to have been a stumbling block to settlement. 

[53]            There should be some consequence in costs as a result, but in my view, it would be unfair and excessively penal to award double costs against the plaintiff, especially where these costs would not have been available under the rule in place when the offer was presented.  Given the significant injury to the plaintiff, which was caused by the defendant’s foolish and reckless behaviour, and the effect on the award of a further reduction for costs, even if not doubled, and taking into account all of the above considerations, in my view it would not be fair or just to require the plaintiff to pay ICBC’s costs after the date of the offer.

[54]            In the result, it is appropriate to give the plaintiff 75% of her costs up to the date of the offer and to deprive her of her costs thereafter.  Each party will bear their own costs after the date of the offer.

This is the second ICBC Injury Claim that I am aware of that went to trial where ICBC beat their formal offer but were not awarded costs under Rule 37B.  It seems that a middle of the road approach is being taken in some circumstances where the ‘punishment’ purpose of Rule 37B is being fulfilled by simply denying the Plaintiff costs.  This may be a just result in cases where ICBC’s offer is not much greater than the amount awarded at trial and requiring a plaintiff to pay costs would be prohibitive in relation to the judgement.  Interestingly the court here seems to have considered the defendants ‘foolish and reckless behaviour’ in causing the collision as a factor in determining costs consequences.
The judgements applying Rule 37B to ICBC Injury Claims keep coming and I will keep posting these as they come to my attention.

$75,000 Non-Pecuniary Damages for Chronic Neck/Back Pain and Headaches

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff just over $190,000 in damages as a result of 3 motor vehicle collisions.
The Plaintiff was 23 years old at the time of trial.  He was injured in 3 collisions, the first of which occured when he was only 10 years old.
The Plaintiff was not at fault for any of the collisions and the week long trial focussed on the issue of damages (that is, the value of the Plaintiff’s ICBC claims).
The medical evidence presented established that the plaintiff suffered from neck pain, upper back pain and headaches and that these symptoms have lasted for more than 10 years.  The court accepted that the Plaintiff’s injuries still have room for ‘considerable improvement with continued focussed and supervised exercise.’ However the court also found that the synptoms would probably never completely resolve.
Damages were awarded as follows:

Non-pecuniary damages                                            $ 75,000

Loss of Earning Capacity                                           $100,000

Cost of Future Care                                                    $  12,650

Special Damages                                                       $    3,570

Past Income Loss                                                       $       698

ICBC claims involving soft tissue injuries and headaches are often based laregely on subjective findings.  That is, often times in these cases one cannot point to an X-ray, MRI or other diagnosistic study that will prove or dis-prove the injury.  Thus the credibility of the claimiant is a vital factor in the success/failure of many of these types of cases.
Here, Mr. Justice Smith found that the Plaintiff was credible and that the injuries were genuine.  Specifically he noted that: 
[19]            The opinions of both Dr. McGraw and Dr. Watt are based primarily on the plaintiff’s description of his subjective symptoms.  There have been few objective physical findings.  However, I found the plaintiff to be a forthright, intelligent, highly motivated young man and I accept his evidence that he has suffered ongoing, although not disabling, pain for 13 years as a result of the first accident, with increased pain and discomfort as a result of the second accident that lasted three years.  It is to the plaintiff’s credit that he has been willing to accept that pain and carry on with most activities.

Rule 37B and ICBC – J. Boyd Considers fact Defendant Insured by ICBC

As you may know Rule 37-B is the new BC rule dealing with formal settlements and costs consequences in the BC Supreme Court.  (to find my previous posts on this case search this cite for ’37B’).
This new rule will take some time to work itself out.  There are already conflicting reasons for judgement addressing whether it is appropriate to look at whether the Defendant is insured when considering costs consequences.
Last week J. Hinkson refused to consider the insurance status of a defendant when deciding whether to award ‘double costs’ after trial.
Reasons for judgement were released today considering the fact that the defendants were ‘represented by ICBC’ when weighing the ‘financial circumstances’ of the parties.
In addition to being the first precedent that has looked at the insurance status of the defendant as a relevant consideration, this case is interesting because it is the first to trigger ‘double costs’ even though a matter settled before judgement.
In this case the Plaintiff alleged a Mild Traumatic Brain Injury after a BC car accident.  She sued and made a formal offer to settle for $500,000 which expired at the start of trial.  The case settled on the 11th day of trial when the defendant’s offered to settle for $1 Million ‘plus assessable costs and disbursements’ less advances paid.  The Plaintiff’s accepted this offer.
The parties could not agree on the costs implications of the settlement were.  The Plaintiff asked for double costs because the Plaintiff’s reasonable settlement offer (which complied with Rule 37B) was rejected and the Plaintiff had to incur significant expense in running 11 days of trial prior to achieving settlement.
The court agreed the Plaintiff was entitled to double costs in these circumstances.  The key finding being made at paragraph 42 which I set out below:
  In the case at bar, on a review of the Rule and the authorities, I conclude that the plaintiff is indeed entitled to double costs from the date of the August 12th offer of settlement forward.  Since the defendants ultimately settled for an amount which was double the plaintiff’s original pre-trial offer, it is clear in my view that her original offer to settle “…was one that ought reasonably to have been accepted”.  Certainly the terms offered in August were far more advantageous to the defendants than the ultimate amount represented by the settlement agreement.  It is also clear that there is a substantial disparity in financial circumstances between the parties.  The defendants, represented by ICBC, had substantially greater resources to finance a trial than the individual plaintiff.  Had the defendants accepted the plaintiff’s initial reasonable offer, the plaintiff would not have had to incur the significant costs associated with nearly two weeks of trial