Tag: Mr. Justice Abrioux

Plaintiff Must "Live With The Consequences" For Failing to Beat Formal Settlement Offer at Trial

Failing to beat a defence formal settlement offer at trial can bring serious financial consequences.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating exactly this.
In today’s case (Gill v. McChesney) the Plaintiff was injured in a vehicle collision and sued for damages.  Prior to trial the Defendant made two formal settlement offers, the second of which was $208,750.  The Plaintiff rejected this and proceeded to trial where she sought “damages in excess of $1 million“.  The trial result was not nearly so favourable with damages being assessed at $87,250.
The Defendant sought to strip the Plaintiff of all of her costs post their formal settlement offer.  This would result in a swing in the tens of thousands of dollars.  The Court granted this request noting that while it may substantially diminish the Plaintiff’s recoverable damages she must “live with the consequences” of running the trial.  In reaching this decision Mr. Justice Abrioux provided the following reasons:

[54]          When I apply the legal framework to which I have referred and consider all the relevant factors, the real issue in my view is whether the plaintiff should pay the defendants’ costs after August 18, 2015, or whether the parties should bear their respective costs from that date onwards.

[55]         While not entirely analogous, this case does have certain similarities to those in Dennis, where the finder of fact concluded the plaintiff was untruthful and/or misled experts, as opposed to the situation where the plaintiff cannot be expected to know in advance how the court might assess his/her credibility in the witness box.

[56]         Here, the plaintiff did not accept a reasonable offer and the award at trial was significantly less than either the First or the Second Offers.

[57]         As was stated in Luckett v. Chahal, 2017 BCSC 1983 at para. 47:

[47]           But what happened here is that the plaintiff, well aware of the significant credibility issues at stake, chose to gamble or “take his chances” by going to trial and lost. He should live with the consequences which Rule 9-1(4) seeks to avoid: Wafler v. Trinh, 2014 BCCA 95 at para. 81.

[58]         In my view, that is what occurred in this case.

[59]         Accordingly, the plaintiff is entitled to her costs and disbursements at Scale B to August 18, 2015, and the defendants to their costs and disbursements at Scale B thereafter.

$80,000 Non-Pecuniary Assessment for Permanent, Partially Disabling Shoulder Injury

Adding to this site’s archives of pain and suffering awards for shoulder injuries, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages at $80,000 for a permanent, partially disabling, shoulder injury.
In today’s case (Mocharski v. Ngo) the Plaintiff was involved in a 2011 collision that the Defendant motorist was found fully at fault for.  The Plaintiff suffered a left shoulder injury which, despite surgical intervention, remained problematic and resulted in a permanent partial disability.  In assessing non-pecuniary damages at $80,000 Mr. Justice Abrioux made the following findings:

[105]     When I apply the principles to which I have referred to the evidence in this case, I make the following findings of fact and reach certain conclusions. As a result of the Accident, the plaintiff sustained the following injuries:

(a) a left shoulder glenohumeral Iabral tear and acromioclavicular joint pain,

(b) left shoulder impingement syndrome,

(c) myofascial pain syndrome affecting the neck,

(d) cervicogenic headaches,

(e) myofascial pain syndrome affecting the back.

[106]     I also find that:

(a) the plaintiff sustained moderately severe soft tissue injuries in the Accident as well as an injury to the left shoulder that ultimately required surgical intervention;

(b) he is left with a permanent partial disability to his left shoulder and will continue to suffer from that condition;

(c) while the symptoms arising from the non-shoulder injuries have lessened considerably over time, the plaintiff was essentially totally incapacitated from a physical perspective for a period of approximately one year due to the injuries sustained in the Accident. These symptoms have and will continue to provide him with occasional discomfort in the future depending on the activities he performs…

[115]     Each case turns on its own facts. Taking into account the Stapley v. Hejslet factors, I award the plaintiff $80,000 under this head of damages.

$100,000 Non-Pecuniary Assessment for Chronic Soft Tissue Injuries With Psychological Component

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic pain condition stemming from collision related soft tissue injuries.
In today’s case (Karim v. Li) the Plaintiff was injured in a 2011 collision.  The defendant accepted fault for the crash.  The Plaintiff suffered various soft tissue injuries which, coupled with psychological consequences, resulted in an ongoing chronic pain condition.  In assessing non-pecuniary damages at $100,000 Mr. Justice Abrioux provided the following reasons:

(a) prior to the Accident, Mr. Karim was a hard-working and industrious man who had overcome significant obstacles in his past. He was satisfied with his life both personally and professionally;

(b) Mr. Karim’s “original position” included a significant difficulty with stuttering which, although considerably improved from what it had been in the past, was in a fragile or vulnerable state. Had the Accident not occurred, regression was likely were he faced with stressful conditions either in his personal or vocational life;

(c) although I found the plaintiff generally to be credible, he has embellished certain events. For example, he advised Dr. Nader that the defendants’ vehicle was travelling at approximately 80 kph when it struck him. Common sense leads to the conclusion that his vehicle would not have been drivable after the Accident had this been the case and that emergency vehicles would have attended the Accident scene, neither of which occurred. There are also examples of embellishment in his work and educational history;

(d) the plaintiff has a tendency to see things in their worst light. Dr. Gouws characterized this as “pain catastrophization”. This has resulted in the perception that he is much more disabled from a pain and functioning perspective than he is in reality;

(e) the plaintiff sustained moderate to moderately-severe soft tissue injuries in the Accident. He was essentially totally incapacitated from a physical perspective for a period of approximately one year and at intermittent times thereafter. As such, his condition, which includes psychological factors, does satisfy the criteria for “chronic pain” being pain that persists for more than six months. The psychological factors have had a significant negative effect on his ability to recover;

(f) despite the plaintiff’s presentation and the history he has provided to the various professionals who have assessed him, he is capable of much more than what he perceives. I accept Dr. Gouws evidence in cross-examination to that effect;

(g) a component of the plaintiff’s perception of his inability to function may be his psychological makeup. He has, however, demonstrated the ability to overcome disability through his own resources or willpower. An example is his ability to control his stuttering to which I have referred above;

(h) with appropriate professional assistance including a further intensive course at Columbia together with a 16 session cognitive behavioural therapy program as recommended by Dr. Riar, Mr. Karim will largely return to his level of personal and professional functioning experienced prior to the Accident; and

(i) in that regard, I accept Dr. Gouws’ and Dr. Paramonoff’s opinions which identified “catastrophization” and “confounding factors” as the main limitation to Mr. Karim’s recovery. This is the basis for their recommendation that he obtain psychological assistance….

[126]     Based on my findings of fact, I am satisfied that Mr. Karim, who was 25 years old at the time of the accident, suffered moderate to moderately-severe soft tissue injuries at the time of the accident which resulted in physical and psychological consequences. The stress of these injuries also aggravated the significant stuttering condition which existed prior to the Accident. I also find that the consequences of the Accident were instrumental in the termination of his relationship with Ms. Azimi which resulted in an increase in his stress and greatly affected his quality of life for a period of time.

[127]     I have also found that with an appropriate course of treatment both physical and psychological that Mr. Karim should largely return to his pre-Accident level of functioning. Thereafter, there will still, in my view, be some occasions in the future when the consequences of the Accident will affect the plaintiff both professionally and personally.

[128]     I conclude that the authorities referred to by the defendants in particular Andrusko resemble more closely the plaintiff’s circumstances. But that award of $80,000, in my view, should be increased to reflect the contribution that the Accident had on the plaintiff’s relationship with Ms. Azimi. The award should also reflect that although I have concluded that the plaintiff does have the ability to overcome his negative perceptions of how the Accident has affected his life this will take some real effort on his part.

[129]     I award the plaintiff $100,000 under this heading.

Nightclub and Bouncers Ordered To Pay $3,084,200 Following Assault on Patron

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, highlighting a $3 million jury verdict following a nightclub assault.
In today’s case (Maras v. Seemore Entertainment Ltd.) the Plaintiff was assaulted outside of a nightclub in Vancouver, BC and sustained a traumatic brain injury.  Both the owner of the club and 3 bouncers were found liable and ordered to pay the damages.  Prior to trial the Plaintiff offered to settle for $1.425 million an offer which was countered with $20,000 by the Defendants.   The Court ordered that the Defendant pay increased costs for failing to accept the Plaintiff’s reasonable pre-trial offer.  In highlighting the jury’s decision the Court provided the following reasons:
[1]             This action arose from an assault upon the plaintiff that occurred on April 4, 2009 outside the Au Bar nightclub, located on Seymour Street in Vancouver.
[2]             The plaintiff sustained serious injuries including a complicated mild traumatic brain injury combined with orthopedic and psychiatric injuries.
[3]             The plaintiff was 20 years old at the time of the assault and 25 years old when the action proceeded to trial before a jury for nine weeks commencing April 7, 2014.
[4]             Both liability and the quantum of damages were in issue at trial and vigorously contested by the parties.
[5]             On June 9, 2014, the jury delivered its verdict. Liability was found against the corporate defendant owner of the nightclub and three of the security personnel or “bouncers”. The action against one of the security staff defendants, Mr. Yip, and the nightclub’s manager, Mr. Childs, was dismissed. The plaintiff was found not to be contributorily negligent.
[6]             The jury assessed damages as follows:

General damages $   250,000
Loss of income and loss of earning capacity to trial $   175,000
Future loss of earning capacity $1,832,000
Cost of future care $   800,000
Special damages $     27,200
Total $3,084,200

 

BC Supreme Court Comments on Expert Report "Appendices"

Sometimes expert witnesses attach lengthy appendices to their reports setting out the materials they have reviewed or interview summaries.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing this practice.
In today’s case (Maras v. Seemore Entertainment Ltd) a variety of expert reports were challenged prior to a lengthy jury trial.  The Court struck several reports and in doing so provided a good overview of the law addressing admissibility of expert reports at paragraphs 9-20 of the reasons.  In addressing the issue of expert report appendices Mr. Justice Abrioux provided the following comments:
[29]         As outlined in Rule 11-6(1)(e) and (f), an expert’s report should clearly delineate between “facts and assumptions” and “opinion”. To the extent there is information in an appendix that is a fact or assumption upon which an expert relies, then that should be contained in the “facts and assumptions” section of the report itself. Likewise, to the extent an appendix contains an opinion, then that should be set out in the “opinion” section of the report. Generally speaking, appendices to the report should be streamlined, and only include what is necessary for the formulation of the expert’s opinion and/or the facts and assumptions upon which it is based.
[30]         An appendix containing summaries and comments, to the extent that it does not contain an opinion or underlying facts and assumptions, is no more than a working paper which does not need to be included in the report itself. It should remain in the expert’s file, which is producible pursuant to Rule 11-6(8). As with any other document forming part of the expert’s file, it can be the subject of cross-examination.
[31]         In deciding the threshold question of admissibility, I am also of the view that there is some assistance to be obtained from decisions of this court or administrative tribunals which consider the reasonableness of an expert’s fee on an assessment of costs. Although I recognize that the purpose of the analysis is different, the underlying issue is similar, that is, the necessity of the expert’s report and its assistance to the trier of fact.
[32]         In that regard, there have been many instances in which Registrars or Masters of this court, when considering whether the amount charged by an expert is properly payable by the opposing party, have commented as to whether the charges were reasonable in the circumstances. Experts’ charges have been disallowed or reduced for a variety of reasons, including when the expert’s report contained improperly extensive narrative: Wheeldon v. Magee, 2010 BCSC 491 at paras. 20-29; Bodeux v. Tom, 2013 BCSC 2327 at paras. 20-23.
[33]         Certain British Columbia Workers’ Compensation Appeal Tribunal (“WCAT”) decisions have also discussed the usefulness, or lack thereof, of lengthy appendices to expert reports. These comments appear within the context of WCAT’s discretion to order reimbursement for expert reports on the basis of a “reasonableness” analysis. For example, in WCAT-2013-02657 at paras. 75-85, it was said:
[85]      In summary, although Ms. Gallagher’s report was helpful in my deliberations, and it was reasonable for the worker to obtain it, I find the reasons for its expense to be inadequate. The appendices to the report detailing the worker’s test results were not helpful to lay person. This information is summarized (or should be) in the body of the report. A summary of the evidence contained in the appendix, again, is not useful or appropriate considering it is on the claim file, and in the body of the report. …
[Emphasis added.]
Similar examples commenting on the reasonableness of lengthy appendices include WCAT-2012-01770 at paras. 105-107, and WCAT-2012-02617 at paras. 53-58.
[34]         In a decision rendered since my oral ruling in this case, Madam Justice Russell recently summarized the law in this province regarding the scope of disclosure of an expert’s file pursuant to Rule 11-6(8): Conseil scolaire francophone de la Colombie-Britannique v. British Columbia (Education), 2014 BCSC 741 at paras. 25-51 [CSF]. After a thorough review of the relevant jurisprudence, she held:
[41]      With regard to the scheme of the R. 11-6(8), I note that R.11-6(8)(a) enumerates a number of documents that must be served on a requesting party immediately, namely written statements or statements of facts on which the expert based his or her opinion; records of independent observations made by the expert in relation to the report; data compiled by the expert in relation to the report; and the results of any tests conducted by the expert or inspections conducted by the expert.  Rule 11-6(8)(a) thus already requires production of the observations and analysis underlying the expert’s opinion.  Rule 11-6(8)(b) should therefore be read as requiring production of something more than the underpinning of the report.

[44]      My interpretation of R. 11-6(8)(b) thus takes a middle road between the broad scope of disclosure at common law and the narrow view asserted by the plaintiffs.  As I see it, on request pursuant to R. 11-6(8)(b), an expert must produce the contents of the expert’s file that are relevant to matters of substance in his or her opinion or to his or her credibility unless it would be unfair to do so.
[Emphasis added.]
[35]         The CSF decision, in my view, supports my conclusion that an expert’s report should be limited to the requirements set out in Rule 11-6(1). To the extent the recipient of the report requires production of further documents, then he or she is to follow the procedure in Rule 11-6(8).
[36]         I would add that if a party seeks production of the contents of the expert’s file earlier than the 14 days before trial provided for under Rule 11-6(8)(b)(ii) and meets resistance in that regard, this could form the basis for a disclosure application at a trial management conference pursuant to Rule 12-2(9)(q).

Bus Driver Liable Following Injury to "Elderly, Frail and Hunched" Passenger

Adding to this site’s archived cases addressing bus driver liability for injuries to passengers, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding a bus driver partly liable after putting the bus in motion when an elderly passenger was attempting to exit.
In this week’s case (Bideci v.Neuhold) the 93 year old plaintiff boarded a bus.  When the bus came to his stop he “spent several seconds in the process of attempting to rise from his seat“.  The bus driver failed to see this, closed the door and put the bus in motion prior to the plaintiff exiting.  This caused the Plaintiff to fall resulting in injury.
In finding the bus driver liable Mr. Justice Abrioux provided the following reasons:
[72]         The standard of care to which Mr. Neuhold was subject included taking a careful enough look into the rear-view mirror as was appropriate under the circumstances in existence at the time. As he candidly admitted in his evidence, he was under no specific time constraints: “If you’re late, you’re late”. Safety of his passengers was his primary consideration.
[73]         Mr. Neuhold’s evidence was that photograph 8 of Exhibit 7 was the most accurate approximation of what he would have seen as he looked in his rear-view mirror, with a caveat being that he would not have been able to see the wheel well on the passenger side of the bus.
[74]          Mr. Bideci’s seat is clearly visible in this photograph and there were no obstructions such as someone standing or moving which would have obscured Mr. Neuhold’s view of this area.
[75]         I appreciate that Mr. Neuhold is not subject to a standard of perfection nor is he the plaintiff’s insurer. But when I apply the legal principles to which I have referred above to my findings of fact, I conclude that the defendants have not satisfied the burden on them to establish that Mr. Neuhold used all due, proper and reasonable care and skill to avoid or prevent injury to the plaintiff.
[76]         Based on my review of the video, I am of the view that Mr. Neuhold did not look carefully enough in his rear-view mirror before deciding to perform his final outside mirror check, which preceded his putting the bus in motion. Had he in fact taken a “long hard look” or a “pretty significant look” in his rear-view mirror as Ms. Trott stated that he did, he would have seen his elderly, frail and “hunched” passenger in the process of slowly rising from his seat.
[77]         Accordingly, I conclude the defendants have not satisfied the burden on them to answer the prima facie case of negligence and I find them liable for the Accident.
 

Bus Driver Liable For Slip and Fall After Failing to Drop Passenger Off at Curb


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing the responsibility of transit operators to drop their passengers off at a safe location.
In last week’s case (Falconer v. BC Transit Corporation) the Plaintiff (who the judge and defence counsel described as “one of the most honest and direct people I have ever come across“) was a passenger on a bus in Kamloops, BC.  It was a winter day and the bus “was not brought to a stop at the bus stop where there was a curb“.   As a result, the Plaintiff  “had a greater distance to step down from the bus than if the bus had been brought to a halt right at the bus stop“.
The Plaintiff slipped on a skiff of snow and was injured.  In finding the bus drier 75% at fault for this incident Mr. Justice Abrioux provided the following reasons:
[44]         In my view, a prima facie case of negligence has been established by the plaintiff. Although Mr. Falconer may not have been able to say what caused him to fall, I have found it was the lower level, icy surface upon which he stepped off the bus due to where the bus driver chose to stop the bus.
[45]         The issue then becomes whether the defendant has presented evidence negating the prima facie case of negligence that has been established. In my view it has not. The reasons for this include:
·       it has led no evidence as to why the bus stopped where it did. Perhaps there was another bus which had pulled up at the stop sign in front of it, but there was no evidence to that effect;
·       it has led no evidence from which I could conclude that the location where the rear doors opened was a “reasonably safe place for [Mr. Falconer] to debark”. See: Grand Trunk Pacific Coast Steamship Co. v. Simpson;
·       viewed within the context of the “very high degree of care” required of a public carrier, the fact Mr. Falconer erroneously believed it was safe for him to debark cannot be interpreted to mean it was in fact reasonably safe for him to do so;
·       the defendant has led no evidence as to whether a warning to passengers was not required under the circumstances.
[46]         In my view, there was a “heightened need to adduce evidence in response, either to prevent the drawing of adverse inferences or to negate a prima facie case”. See: Parsons and Sons Transportation Ltd.
[47]         In addition, Mr. Rogers breached the standard of care expected of a bus driver by leaving the bus stop. An elderly passenger had slipped and fallen in the immediate vicinity of the rear door of the bus. The fact Mr. Rogers left the scene can only mean he did not perform the appropriate check in his right mirror. To quote Mr. Cameron, “I don’t see how a person can drive away in a bus without checking the right mirror to see that they are clear.… You could have a kid reaching in there for a ball under the tires or whatever”. Although this breach of the standard of care did not cause the plaintiff’s injury, it indicates to me a “general lack of care and inattention” by Mr. Rogers in so far as his responsibilities to passengers were concerned. See:  Donald v. Huntley Service Centre Ltd., (1987) 61 O.R. (2d) 257 (S.C.J.) at para. 9.

$50,000 Non-Pecuniary Assessment for Chronic AC Joint Injury

Adding to this site’s archived posts addressing BC non-pecuniary assessments for shoulder injuries, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic AC joint injury.
In last week’s case (Westfield v. Lindstrom) the Plaintiff was involved in a 2010 rear end collision.  Fault was admitted by the Defendant.  The Plaintiff suffered from soft tissue injuries which largely recovered her AC joint injury remained problematic at the time of trial that were expected to continue indefinitely.   In assessing non-pecuniary damages at $50,000 Mr. Justice Abrioux provided the following reasons:
[58]         I make the following findings of fact based on my consideration of the evidence, both lay and expert, as a whole:
a.         prior to the Accident the plaintiff had occasional difficulties with her low back.  In addition, she had degeneration in her right shoulder area.
b.         the plaintiff also suffered from asthma and had respiratory problems, which affected her daily living activities to various degrees from time to time.  These difficulties made her more susceptible to developing a more serious condition in the future.  That in fact occurred after the Accident.  The development of the respiratory condition to its current stage which the plaintiff concedes is “serious and disabling,” plays an important role in her day-to-day functioning and ability to enjoy the amenities of life.
c.        the plaintiff sustained various soft tissue injuries in the Accident.  It is also likely she sustained an injury to the AC joint in the right shoulder.  Although the plaintiff has recovered from certain of these injuries she has ongoing pain and discomfort to her right shoulder, with associated discomfort in her neck, which is likely permanent.
d.         the Accident injuries affected the plaintiff’s “original position”, that is, the state of her health and its effects on her functioning prior to the Accident.  This original position included a right shoulder with degenerative changes.
e.         although the plaintiff has indicated she would be prepared to undergo an operation to her right shoulder if that were recommended to her, she has not established that recommendation is likely to occur.  There is evidence the operation could pose a significant risk to her life.  Quite understandably, the plaintiff testified she would not undergo the surgery if there were in fact such a risk to her.  There was no evidence from an anesthesiologist to the effect the plaintiff’s respiratory condition would not in fact result in a significant risk to her life were she to undergo an operation which involved a general anesthetic.  This is what would likely occur in this case.
f.          while the plaintiff does have some ongoing pain and restriction to her shoulder which is likely to be permanent, the effect of the ongoing Accident injuries plays a considerably less negative role in her day-to-day functioning than do the ongoing effects of her serious respiratory condition.
g.         the plaintiff has downplayed to some extent the respective contributions to her current state of health caused by the Accident injuries on the one hand and the respiratory condition on the other.
h.         notwithstanding this, the injuries sustained in the Accident do affect, to some extent, the plaintiff’s current ability to function and the quality of her life generally.  I accept the plaintiff’s evidence and that of her family members that she is no longer as happy and outgoing as she was prior to the Accident.  I do not, however, accept that this state of affairs is entirely due to the injuries sustained in the Accident.  The effect of the respiratory condition on the plaintiff’s life, which includes being the sole cause of her inability to work in a position which provided her with great personal satisfaction as a special needs educational assistant, also contributes to her current psychological state.
i.          the plaintiff has made significant recovery from the effects of the injuries sustained in the Accident.  This occurred within approximately 18 months to two years after the Accident.  She is left, however, with ongoing aches and pains to her upper back and right shoulder area.  These will continue indefinitely to some degree.  The ongoing effects of the injuries sustained in the Accident also affect to some degree her ability to perform certain household tasks…
[72]         I conclude the effect of the plaintiff’s injuries in this case, while generally comparable to those in Rozendaal and Bhadlawala, are somewhat more severe insofar as the day-to-day enjoyment of life and ability to function is concerned.  I award the plaintiff $50,000 under this head of damages, which includes $5,000 for loss of past and future loss of housekeeping capacity.

"It is Not for the Tortfeasor" To Dictate Timelines for a Plaintiff's Retirement

Interesting reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing mitigation of damages in a personal injury claim seeking compensation for reduced pension benefits.
In this week’s case (Wangert v. Saur) the Defendant died when his vehicle collided with a train operated by the Plaintiff.  The Plaintiff suffered from Post Traumatic Stress Disorder and missed some time from work.  The Plaintiff retired in 2012 and sought damages for a reduced pension arguing that had he not been psychologically injured by the collision he would have worked more hours thereby having greater pensionable earnings.
The Defendant argued that since, at the time of the Plaintiff’s retirement at age 55, he was able to work full time and had no residual difficulty from the Accident he failed to mitigate his damages by not working past his otherwise planned retirement in order to earn a greater pension.  Mr. Justice Abrioux rejected this argument providing the following reasons:
[34]         In this case, I accept the plaintiff’s evidence that he had always planned to retire at the age of 55. He had spent many years working for CP Rail.
[35]         The defendant did not cite any legal authority supporting his position that a plaintiff could have mitigated losses by working past his or her planned retirement age. I was also unable to find any.
[36]         In my view, planning for retirement is a very important stage in a person’s life. When one has the opportunity to retire at a certain age, even though continuing to work remains available, the decision to retire is not entered into lightly. It is not for the tortfeasor to take the position that the plaintiff‘s failure to change his life plan due to an accident which occurred through no fault of his own, amounts to unreasonable conduct.

Plaintiff Awarded Partial Costs Despite Having Claim Dismissed at Trial

Reasons for judgement were released this week by the BC Supreme Court, Cranbrook Registry, highlighting the Court’s discretion with respect to costs consequences following a trial in which a pre-trial formal settlement offer was made.
In this week’s case (Russell v. Parks) the Plaintiff was injured when struck by the Defendant’s vehicle while walking in a parking lot.   Liability was at issue and ultimately the Plaintiff was found 2/3 responsible for the incident.  After factoring this split in the Plaintiff’s assessed damages came to  $28,305.  Prior to trial ICBC paid more than this amount in Part 7 benefits which are deductible from the damage assessment pursuant to section 83 of the Insurance (Vehicle) Act.
Despite proving partial liability against the Defendant and further proving damages, the Plaintiff’s claim was ultimately dismissed due to the above statutory deduction with Mr. Justice Abrioux providing the following reasons:
[20] In my view, this reasoning applies to this case, where the application of section 83(5) of the Act results in there being an award of $0 to the plaintiff. Accordingly, the action is dismissed and this should be reflected in the order.
Prior to trial ICBC made a formal settlement offer for $25,000 of ‘new money’.  The Court needed to consider what costs consequences ought to flow in these circumstances.  In awarding the Plaintiff 75% of pre-offer costs and having each party bear their own post offer costs the Court provided the following reasons:
[21] The dismissal of the action does not necessarily mean the plaintiff is disentitled to any costs: see McElroy v. Embleton, at para. 10.
[22] The first question is, putting aside for the moment the issue of Part 7 benefits paid, how should costs be apportioned from the time of the commencement of the action until April 13, 2012? At trial, I found the defendant to be one-third liable for the plaintiff’s loss. ..
[28] Having considered these authorities, and subject to my findings below regarding the Part 7 benefits, I find the plaintiff is entitled to 75% of his costs up to the date of the settlement offer of April 13, 2012. This reflects the fact that although the amount of time spent on determining liability at the trial was not “minimal”, more time was spent regarding the assessment of damages. This was shown in the medical evidence led, the reports which were obtained and the like. It would be unjust not to exercise my discretion to depart from the default rule referred to in paragraph 26 above in these circumstances.
[29] The next issue is whether the payment of the Part 7 benefits should affect the award of costs…
[43] This is not an appropriate case, in my view, to conclude as is submitted by the defendant that the plaintiff should not have proceeded to trial. It was not readily foreseeable to either party what the result was going to be with respect to liability or the quantum of damages. In so far as liability is concerned, I noted at para. 31 of my reasons for judgment that cases dealing with competing duties of pedestrians and operators of motor vehicles are highly fact specific.
[44] Taking all of these factors into account, I conclude that for the time period up to the defendant’s settlement offer of April 13, 2012, the plaintiff shall be awarded 75% of his costs and disbursements…
[45] What is the effect of the settlement offer made by the defendant for $25,000 of “New Money” as defined in counsel’s correspondence dated April 13, 2012? The New Money was in addition to the Part 7 benefits already received by the plaintiff. No objection was taken by the plaintiff to the form of the defendant’s offer to settle…
[62] Upon considering the factors in R. 9-1(6), I do not accept the defendant’s submission that double costs are appropriate. There is no reason for the plaintiff to be subject to a punitive measure. He was not unreasonable in rejecting the settlement offer. The issues at trial made the apportionment of liability quite uncertain. There was also a considerable range in the amount of damages which could have been awarded. The plaintiff’s finances would be greatly impacted if an order for double costs was made against him. In addition, the end result was effectively a nil judgment.
[63] Taking into account the legal principles to which I have referred and the particular circumstances which exist in this case, I conclude each party should bear their respective costs after the date of the defendant’s offer to settle. The plaintiff has already suffered some financial consequences for proceeding to trial in that I have decided he shall not receive 100% of his costs until the defendant’s offer to settle, but rather 75% of those costs.
 

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ERIK
MAGRAKEN

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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