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Tag: Mr. Justice Crawford

Driver 25% At Fault For Being Rear Ended Due to "Sudden Stop"

Written by admin on . Posted in ICBC Liability (fault) Cases.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing a motorist 25% at fault for a crash despite being rear-ended.
In today’s case (Gibson v. Matthies) the Plaintiff was operating a motorcycle travelling behind the Defendant.  The Defendant brought his vehicle to a “sudden stop” prior to attempting a left hand turn.  The Plaintiff was unable to react in time and rear-ended the Defendant vehicle.  The Court found that the Plaintiff was negligent but also gave the Defendant 25% of the blame for his sudden stop.  In reaching this conclusion Mr. Justice Crawford provided the following reasons:

[174]     Therefore I accept Mr. Kramer’s evidence that the truck came to a sudden stop, and if I were to speculate, it may have been that Mr. Matthies was debating whether he was going to make a left turn in front of the oncoming traffic but decided it was safer to come to a stop, albeit quickly.

[175]     In the circumstances, Mr. Kramer, who was watching the red truck, was able to brake and evade the truck by swerving to his right and into the ditch and Mr. Matthies recalled seeing Mr. Kramer’s motorcycle beside him at that time.

[176]     Mr. Gibson, according to the evidence, had been trailing behind Mr. Kramer but closer to the centre line.

[177]     Mr. Gibson said he checked his rear-view mirror for the traffic behind him and looked up to see Mr. Matthies’ truck already stopped. He said he could not go left into the oncoming traffic, or go right, probably because Mr. Kramer had slowed because of Mr. Matthies’ truck slowing, and therefore Mr. Kramer’s motorcycle was relatively close to his right and he could not safely veer right. So he braked, the motorcycle “laid down” and the motorcycle slid into the back of Mr. Matthies’ truck. Mr. Matthies said he looked back to see Mr. Gibson’s motorcycle sliding into the rear of his truck. I credit Mr. Matthies for an extremely quick reaction, to accelerate his truck so that the motorcycle struck the rear of his truck as it was already starting to pull away and Mr. Gibson, who was catapulted from his motorcycle, somersaulted onto the roadway behind Mr. Matthies’ accelerating truck. Had Mr. Matthies not acted so promptly, Mr. Gibson may have been injured far more seriously.

[178]     Ms. Steele’s evidence to some degree confirmed Mr. Kramer’s evidence as to not seeing a turn signal and there being a discussion between Mr. Kramer and Mr. Matthies about leaving the scene of the accident.

[179]     The primary onus however, in law (and in common sense), falls on Mr. Gibson as he is the rear motor vehicle, to keep a safe distance from the vehicle ahead. In addition, I find contributing negligence of both he and Mr. Matthies, Mr. Matthies for a sudden stop and Mr. Gibson for lack of lookout. The lack of lookout has two facets; a failure to see the truck slowing and stopping suddenly; and that in turn meant Mr. Gibson continued at cruising speed while Mr. Kramer slowed, and Mr. Gibson lost his ability to veer right behind Mr. Kramer.

[180]     Both parties are in agreement in terms of applying the provisions of the Negligence Act, R.S.B.C. 1996, c. 333, s. 1. I find that the larger burden should fall on the plaintiff and thus I conclude that Mr. Gibson is at 75% at fault for the accident and Mr. Matthies at 25%.

$140,000 Non Pecuniary Assessment for Brain Injury With Lingering Post Concussive Symptoms

Written by admin on . Posted in ICBC Brain Injury Cases. 52 Comments on $140,000 Non Pecuniary Assessment for Brain Injury With Lingering Post Concussive Symptoms

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a brain injury caused by a collision.
In today’s case (Curtis v. MacFarlane) the Plaintiff suffered a brain injury in a 2006 assault when he was struck with a baseball bat.  He was then involved in a 2009 collision where he sustained further head trauma.  The Defendant motorist tried to blame the Plaintiff’s deficits on the previous assault although the Court found the collision indeed caused a head injury with prolonged post concussive issues.  Prior to assessing damages Mr. Justice Crawford provided the following useful comments regarding head injury litigation:
[1]             The human brain is approximately three pounds of jelly containing more than 100 billion neurons and more than 100 trillion synapses. Our knowledge of its workings has vastly increased in the last 50 years, but man knows more of the universe than the workings of the human mind.
[2]             Only recently has the sporting world come to grips with the reality that splendid, strong athletes whose brain gets shaken up are in fact sustaining irreparable brain damage, revealed not only by the changes in the athlete’s performance and behaviour, but the ghastly findings of the autopsies upon the athlete’s death.
[3]             In the context of motor vehicle accident litigation, I have heard lawyers move from “emotional overlay” to describe the changed behaviour of their clients, to the realization that brain injury is unchartered territory, sometimes susceptible to a medical finding or organic damage that may show on an MRI, but more often diagnosed by behavioural changes of the client. The difficulty facing the finders of fact listening to learned medical professionals is pinpointing what got damaged, how that damage affects the working of the brain and the behaviour of the client, and how those behavioural, cognitive, and intellectual changes can be treated. Those difficulties simply reflect the fact that medical and scientific research is in a very early stage of finding out how the human brain works.
[4]             The dilemmas in the litigation context are many, particularly when there is testimony of memory loss and the plaintiff answers many questions with answers such as “I can’t remember” or “I can’t say when”…
In assessing non-pecuniary damages at $140,000  Mr. Justice Crawford provided the following reasons:
[728]     I am satisfied that Mr. Curtis had made a full recovery from the effects of the bat injury as clearly demonstrated by the witnesses who spoke of his daily life before  the car accident; his 2007 visit to Greece; and his training, competition and coaching in 2008. All of that evidence speaks to a fit, strong and healthy young man as of January 2009.
[729]     The subsequent concussion symptoms, ongoing depression, and anxiety led to a downward spiral through 2009 and 2010. He has had some improvement since seeing Dr. Ancill in December 2010 but the evidence is clear that the hardworking, energetic, calm, upbeat, and outgoing Mr. Curtis has become reclusive, dull, lethargic, moody, anxious and easily agitated.
[730]     I found a large amount of Mr. Curtis’ self-worth is bound up in his physical strength and Brazilian jiu-jitsu fighting competitions. That self-worth has been lost, but he maintains his love of his sport and his wish to continue to contribute to it.
[731]     Financially, however, it was not rewarding.
[732]     His cognitive defects or deficits; his loss of fighting abilities; and his decreased affection and libido all severely compromise his enjoyment of life.
[733]     I read the cases both sides submitted and no two cases are alike.
[734]     One stark factor in some of the plaintiff’s cases shows what I would call a fighting ability – i.e., a demonstrated wish by a young athletic person to try and fight to regain their previous abilities. The depression found by all experts is perhaps the explanation for Mr. Curtis’ failure to try to rebound, to bring his fighting qualities to restoring his life…
[736]     It is Mr. Curtis’s misfortune that he did not have that initial intellectual capital that has made it more difficult to see a forward path, an issue that Dr. Ancill will have to deal with directly, through psychological and psychiatric therapies and medications as he deems appropriate.
[737]     In the circumstances, I set general damages at $140,000.

Assessing Damages for an "Old School" Plaintiff with Soft Tissue Injuries

Written by admin on . Posted in ICBC Soft Tissue Injury Cases.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for soft tissue injuries sustained by a Plaintiff who sought very little medical treatment.
In this week’s case (Baker v. Clark) the Plaintiff was injured in a collision for which the Defendant was at fault.  He suffered soft tissue injuries and was assessed by his family physician.  By the time of trial the Plaintiff still had symptoms but had not seen his physician for over two years.  The Court accepted that this was due to the plaintiff’s stoic ‘old school’ attitude.  In assessing non-pecuniary damages at $30,000 Mr. Justice Crawford provided the following reasons:
[59]         I am satisfied Mr. Baker sustained soft-tissue injuries to his neck and upper-back. He attended physiotherapy, but no report was tendered from the physiotherapist. That treatment evidently was for his neck and upper-back. Mr. Baker made no complaint of headaches. He was off work for three months and returned in late July 2011. After experiencing difficulty with both his neck and his low-back that became evident with the hours of sitting required of a taxi driver, he purchased an ObusForme to help his seated posture. He found that getting in and out of the cab regularly when he would stand-up and stretch eased his neck and back pain.
[60]         Dr. McKenzie’s independent assessment confirmed the neck injury though the doctor was somewhat guarded in his ongoing opinion. However, regarding Mr. Baker’s low-back pain, the doctor concluded the pain was due to de-conditioning and not because of the car accident. I am driven to an opposite conclusion for it seems equally sensible, if not more sensible, that Mr. Baker’s de-conditioning was because of the car accident…
[64]         A fair conclusion is that Mr. Baker is a “old-school” man: he is robustly built and of few words; he does not complain, and indeed, he rarely saw a doctor before the accident and then only to get his health check as the taxi company requires.
[65]         He also has not seen his family doctor about his injuries for some two years. Dr. Jones, his family doctor, wrote his letter of opinion in December 2011, some eight months after the accident. Both Dr. Jones and Dr. McKenzie were guarded about the long-term prognosis for complete recovery of Mr. Baker’s soft-tissue injuries. I conclude they were guarded due to Mr. Baker’s age and the likelihood that patients in their sixties are not going to recover from soft-tissue injuries as they might have in their earlier decades…
[67]         Counsel provided a number of cases, and of course, none are precisely alike. But I do find the defendant’s cases more on point or more similar to Mr. Baker’s situation. On the other hand, Mr. Baker’s leisure activities in his retirement are being substantially affected. I accordingly award him $30,000 general damages.

Defendant's Insured Status Shields Plaintiff From Hefty Costs Consequences

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 7, BCSC Civil Rule 9, Uncategorized.


As previously discussed, when a Plaintiff fails to beat a Defendant’s formal settlement offer at trial they can be exposed to significant costs consequences.  One factor that Courts can consider when using their discretion is the financial status of the parties including whether the Defendant is insured.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, using this factor in shielding a Plaintiff from potentially hefty costs consequences.
In this week’s case (Cunningham v. Bloomfield) the Plaintiff was injured in a collision.  She sued for damages and the claim proceeded to jury trial.  Prior to trial the Defendant provided a formal settlement offer of $12,500.  The jury awarded $5,000 in total damages triggering a Defence application for payment of post offer costs.  Mr. Justice Crawford rejected the application finding stripping the Plaintiff of all her costs was a more appropriate result.  In addressing the financial position of the parties the Court provided the following reasons:

[15] The award of the jury was low. But as noted in Cairns at para. 50, the unpredictability of a jury is a relevant consideration.

[16] It is said that the plaintiff is not lacking in income and no evidence as to her assets have been put forward to properly consider her position. But as discussed in several of the cases, the defendant through their insurer is able to cover their costs. The plaintiff on the other hand has a dependent husband and a reduced income, though that by choice.

[17] The other factor I consider appropriate is of course my assessment of the plaintiff’s case upon the issuing of the writ and I have found counsel’s assessment was over-optimistic and therefore the plaintiff is already deprived of costs.

[18] In the circumstances I will allow the plaintiff her disbursements throughout, but I will make no order as to costs payable to either side.

$50,000 Non-Pecuniary Damages Assessment for Chronic Myofascial Pain

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases. 50 Comments on $50,000 Non-Pecuniary Damages Assessment for Chronic Myofascial Pain

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, dealing with non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for chronic soft tissue injuries.
In today’s case (Thauli v. Gill) the Plaintiff was injured in a 2005 motor vehicle collision.  It was a ‘t-bone’ crash.  The Plaintiff was a passenger at the time and the issue of fault was admitted by ICBC on behalf of the offending motorist.  The Plaintiff suffered a variety of soft tissue injuries which resulted in a chronic myofascial pain syndrome.  In assessing non-pecuniary damages at $50,000 Mr. Justice Crawford provided the following reasons:

[35] Pain is doubtless one of the discussion footballs in medical science.  It is subjective.  Many of us have seen people receive devastating injuries, bear with them stoically and sometimes recover in very short time.  We see the professional footballer or hockey player do that on a regular basis, but many cannot.  Many are built differently and respond differently to different injuries.  Dr. Sidhu said that he expected Ms. Kalsi, given her lifestyle, to have largely recovered in six or eight weeks from the car accident.  And as I noted, Dr. Chu said in his evidence perhaps the neural pathways are somehow compromised in some people and continue to send messages of pain to the head, and in fact the soft tissues are already recovered.

[36] In any event, I found Ms. Kalsi an honest and straightforward young lady.  The evidence of the witnesses recorded in consistent fashion how busy, vivacious and outgoing she was prior to the accident, how there had been a continuing complaint of pain to her upper left back area, as vague as that might be, and that had continued to be of a consistent concern to her and to her doctors…

[38] I am satisfied the plaintiff was injured in the car accident in May of 2005.  The injuries to her knee, neck and left upper back are consistent with being thrown over the restraining seat belt and extending the soft tissues in her upper back and neck on the left side.  It is likely those injured areas of her body have recovered.  It is also likely her ongoing complaints of pain in turn caused the depression, but that was well treated in 2007.

[39] Medically the pain is chronic and the symptoms have been collated under the heading myofascial pain.  That is real to Ms. Kalsi.  It is, on her own word to her doctors, largely moderated in 2007 and in my view there is a fair chance it will continue to improve, if not wholly, at least be well within her control.

[40] In sum, then, I award general damages at $50,000.

More on the "Harsh" Reality of Part 7 Benefits Deductions in ICBC Tort Claims

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits, Uncategorized. 53 Comments on More on the "Harsh" Reality of Part 7 Benefits Deductions in ICBC Tort Claims


Two Judgements were recently released by the BC Supreme Court discussing the “harsh” reality of Part 7 Benefits Deductions in ICBC Injury Claims.
As previously discussed, if you are entitled to receive Part 7 Benefits under your policy of insurance and don’t pursue these a Defendant who is responsible for injuring you in a BC Motor Vehicle Collision can reduce the amount of damages that they have to pay you by the amount of benefits you should have received from your own insurance coverage.  Often after trial ICBC will argue that some of the awarded damages should be reduced for this reason.  The first of the two recent judgments demonstrates that these deductions could operate in a punishing way for Plaintiffs.
In the first case released this week (Kirk v. Kloosterman) the Plaintiff suffered “catastrophic and tragic” injuries in a motor vehicle collision.  The Plaintiff, who had a learner’s licence to operate a motorcycle, failed to obtain a full licence at the end of his probation period and for this reason was considered uninsured by ICBC.  He was struck by a vehicle operated by the Defendant and suffered serious injuries.  He became paralyzed from near the waistline down.  His spinal cord became infected while in hospital and this “literally chewed up a further portion of the spinal cord so that he has lost a great deal of his thoracic capacity and now his arms and shoulders must bear his weight and provide all his strength“.
A jury found the Plaintiff 15% at fault for the collision and the Defendant 85% at fault.   Damages of nearly $4 million were awarded less 15% to reflect the Plaintiff’s liability.   Following verdict the Defendant (who was insured with ICBC) applied to have some of these damages reduced because the Plaintiff was allegedly in breach of his no-fault plan with ICBC.   Mr. Justice Crawford granted the motion and reduced the damages by approximately $200,000.  In doing so the Court noted that while this was “harsh and even punitive” a Plaintiff who disentitles himself to his own ICBC coverage can be faced with a statutory deduction in their tort claim.  Mr. Justice Crawford provided the following reasons:

[]           Ms. Kloosterman says the law is clear and settled: if the plaintiff acts so as to disentitle himself, then the Court must calculate and apply the deduction. She argues that Mr. Kirk would have been entitled to benefits under Part 7, had he possessed a valid driver’s licence.

[]           It is plain that the legislative intention is to prevent double recovery, that is, to prevent a plaintiff from recovering the same amount of monies both by way of the defendant through a tort action and by way of no-fault insurance coverage. Given the legislative intention, it seems harsh and even punitive to not only deny a plaintiff, who has been found substantially not at fault in a motor vehicle collision and awarded damages for losses sustained, no-fault benefits but also to deduct the amount of his or her potential entitlement to Part 7 from the tort award. However, the case law is binding on me, and can only be construed differently by the Court of Appeal:  see Baart v. Kumar, (1985), 66 B.C.L.R. 1 (C.A.); Si v. Enns, , 2001 BCSC 1120.

[]           Accordingly, I accept the defendant’s submissions on this issue and find that there must be a deduction.

In the second case released this week (Gignac v. Rozylo) the result was not nearly as harsh but the case still demonstrates the reality that applications for statutory deductions can be made following vehicle collision cases.
In Gignac the Plaintiff was injured in a 2004 motor vehicle collision.  Following trial Mr. Justice Wilson awarded damages including $15,000 for ‘special damages‘ and just over $115,000 for ‘costs of future care‘.  (UPDATE August 17, 2012 – the BC Court of Appeal reduced the cost of future care award by about $40,000.  Their reasons can be found here) ICBC then argued that these awards should be reduced by $25,000 to account for the fact that the Plaintiff can obtain money from ICBC for these expenses under their own policy of insurance.
Mr. Justice Wilson largely rejected ICBC’s arguments and made a modest deduction of $2,000 of the awarded damages.  In doing so the Court provided the following useful comments about the “level of abstraction” of ICBC’s permissive benefits scheme:

[23]        As I understand Ms. Lewko, if a benefit is not “specifically listed”, then, an insured’s entitlement to the benefit is dependent upon “ICBC claims handling procedures”, or “ICBC claims handling policies”, or “ICBC policy”.

[24]        Legislative support for this approach is s. 88(2)(f), the “other” category, referred to above.

[25]        The statute does not direct me to determine entitlement to benefits pursuant to ICBC policy; the direction is to determine entitlement pursuant to the plan.

[26]        Section 88(2)(f) is subject to the opinion of the corporation’s medical advisor that an expenditure is likely to promote the rehabilitation of an insured.

[27]        The opinion of that medical advisor is a necessary condition before resort may be had to s. 88(2)(f) of the Regulation.  Absent the necessary condition, the corporation is not authorized to pay benefits.

[28]        Rehabilitation means restoration.  This plaintiff’s debilitating condition is chronic pain.  Current medical science has no cure for this condition.  I find it improbable that a medical advisor would opine that any of the goods and services contained in the assessment of future care costs, would promote the rehabilitation of this plaintiff.  Those goods are services were recommended by the occupational therapist as necessary to enable this plaintiff to maintain an optimum level of functioning, now and in the future, and to maximize independence and prevention of further disability.

[29]        Alternatively, if I am wrong in my interpretation of the legislation, and ICBC policy is a relevant factor, then the applicant has not persuaded me that it is more likely than not that this plaintiff is entitled to the benefits in controversy.  The scales are evenly balanced.  Policy may authorize the benefit or it may not.  According to Ms. Lewko:

11.       It is ICBC policy that the exercise of discretion for permissive benefits must be rationally connected to the relevant factors governing an objective assessment of the entitlement to the benefit.

That is a level of abstraction which does not allow for a determination of entitlement on a balance of probability.

[30]        In result, the cost of future care assessment is reduced by $2,000.

Damages for Violations of Privacy in BC

Written by admin on . Posted in ICBC Privacy Issues, Uncategorized. 128 Comments on Damages for Violations of Privacy in BC

(Update: The below decision was upheld by the BC Court of Appeal in December, 2011)

As I’ve previously written, the BC Privacy Act allows individuals to sue where their privacy is violated “wilfully and without a claim of right” by another person.  This powerful law permits such lawsuits to succeed even where a Plaintiff cannot prove actual damages.
Despite the strength of the BC Privacy Act, relatively few reported decisions have been released applying this law in the years that it has been on the books.  Useful reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, applying this law in combination with a claim for damages for defamation.
In today’s case (Nesbitt v. Neufeld) the Plaintiff and Defendant were involved in “protracted family litigation” During the course of that litigation one of the parties “resorted to out-of-court publications that are plainly private to the litigants“.  The reasons for judgement are worth reviewing in full for the details but these apparently included “private communications…released to third parties and made available to the public (including)…a YouTube video…a website…a Facebook Page…(and) a letter to the Ministry of Child and Family Development”
The victim sued arguing she was defamed and further that her privacy rights were unreasonably violated.  Mr. Justice Crawford agreed and awarded the Plaintiff $40,000 in damages.   In reaching this award the Court provided the following reasons:

[89]         The B.C. Court of Appeal in Davis v. McArthur (1970), 17 D.L.R. (3d) 760, [1970] B.C.J. No. 664 (QL) (C.A.), said this in the course of its judgment at para. 9 of QL:

To constitute the tort [of violation of privacy] the violation must be committed “wilfully and without a claim of right”. The nature and degree of privacy to which the person is entitled in any situation or in relation to any matter is fully set out in s-s (2) [now ss. 1(2) and 1(3)] and, in my opinion, no useful purpose would be served in attempting to elaborate upon the words contained therein. Regard must be had to the provisions of the subsection as a whole. It is plain that whether there has been a violation of privacy of another must be decided on the particular facts of each case. As the learned Judge below said in his reasons for judgment [10 D.L.R. (3d) 250 at p. 255, 72 W.W.R. 69]: “It is necessary to consider all of the circumstances before determining ‘The nature and degree of privacy to which a person is entitled,’ s. 2(2) [now ss. 1(2) and 1(3)].

[90]         In Hollinsworth v. BCTV, a division of Westcom T.V. Group Ltd. (1999), 59 B.C.L.R. (3d) 121, 113 B.C.A.C. 304, the Court of Appeal defined the term “wilfully” to mean “an intention to do an act which the person doing the act knew or should have known would violate the privacy of another person” (at para. 29 of B.C.L.R.).

[91]         Dr. Nesbitt’s use of the private correspondence between Ms. Neufeld and Ms. X was a deliberate act that violated Ms. Neufeld’s privacy. The communications were extremely personal…

[96] Had Dr. Nesbitt restricted his communications within the confines of the family court litigation where he had counsel to advise him of the bounds of legitimate expression of his opinions, the issues before me in this proceeding might not have arisen. I say “might” because I note that certain publications of Dr. Nesbitt prompted an application to the family court that resulted in a consent order made on September 8, 2008 before Master Caldwell restraining Dr. Nesbitt from making further improper communications…

[102] The reality is that Dr. Nesbitt has taken his battle with Ms. Neufeld over custody and access far outside the ordinary confines of the family court litigation. Even worse his lack of appreciation for the proper boundaries of communication of his opinions has spread to besmirch persons that are friends of Ms. Neufeld.

[103] Dr. Nesbitt disclosed matters private to the parties in a manner that defamed Ms. Neufeld; he is the publisher of the defamatory materials at issue.

[104] For breach of privacy and the defamation aspects of the defendant’s claim, I set that amount at $40,000.

[105] I only limit the defamation damages due to the fact that while it is plainly publication to the world in the sense the defamatory materials were put on the Internet, Ms. Neufeld indicated there has been little personal or professional backlash. Indeed, if I read between the lines, the communications to the Rotary Club, the Ministry and the Child’s doctor were treated with the disdain they deserved.

The Court went on to award the victim ‘special costs’ in order to rebuke the other parties ‘reprehensible conduct‘.  The ease created by social media platforms in allowing individuals to quickly publish material to the Internet will likely make claims such as these more prevalent in the years to come.  With this, damage awards for privacy violations will hopefully be shaped into predictable ranges.

More on Rule 37B – Lack of a "Reasonable Counter Proposal" Considered

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure, Jury Trials, Uncategorized. 51 Comments on More on Rule 37B – Lack of a "Reasonable Counter Proposal" Considered


Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, considering a factor that I don’t believe has been previously considered under Rule 37B, the effect (or lack of) a reasonable counter offer.
In today’s case (Foster v. Juhasz) the Plaintiff was injured in a BC car crash.  She sued for damages.  Before trial she made a formal offer under Rule 37B for some $285,000 and at the same time indicated she would be willing to settle for $214,000.  The Defendants rejected the offers, apparently did not make a counter offer and went to trial.
At trial the Jury awarded the Plaintiff over $450,000 in total damages.  The Plaintiff then brought a motion for ‘double costs’ under Rule 37B.
The Defendants argued that they could not have accepted the offer because their insurance policy was only for $200,000.   Mr. Justice Crawford rejected this argument and ordered that the Defendants pay double costs.  He reasoned that the offer should have been accepted.  In coming to this decision he took into consideration the fact that the Defendants did not make a “rational counter-proposal“.  Mr. Justice Crawford provided the following reasons:

[14] While I accept the policy limits may have been a factor in not accepting the offer, it does not answer the question why a rational counter-proposal was not made by the defendants. There was no comment made by the defendants as to the reasonableness or otherwise of the plaintiff’s offer. Rather, the position was taken that the defendants had a meritorious case to present on the issues which could result in an award under policy limits. If that was so, then a sensible and rational defendant could have sat down and appraised the plaintiff’s case. For instance an assessment of general damages at $60,000, past wage loss at $2,000, future lost earning capacity at $35,000, and $25,000 for future care could be made. That would not have been unreasonable and at least if not accepted, might have created a pathway to settlement. Such an offer pales in comparison to the jury award, especially the future income capacity and future care components. More so in that I recall directing the jury to be moderate. I am obliged to say the jury’s award was far beyond the evidence on these aspects.

[15] However, I do not accept the argument that the defendants were in an impossible situation in terms of accepting the offer. They chose their own level of insurance, and their choice was, with respect, a very low one given current potential liabilities for motor vehicle owners. I accept counsel’s belief that there were reasonable arguments to advance as to the amounts of the plaintiff’s claims. It was not unreasonable to think a jury, in light of the small past income loss, might not give a large future lost income award. As to the reasoning of the jury on the future care aspect, that cannot be fathomed. But no direction is given to a jury on the quantum of general damages, save in catastrophic cases.

[16] The motion for judgment was not contested by the defendants at trial. Counsel does say the case is under appeal, so the quantum may not be settled. I agree with Humphries J. that while consideration should be given to the result, the court’s discretion is not to be driven by “hindsight analysis”: see Lumanlan v. Sadler, 2009 BCSC 142.

[17] Another aspect is deterrence. The difference in the offer and the final award is a factor, as is the failure of the defendants to make a sensible counter-offer. It was not a case where the plaintiff would not obtain a reasonable award. It was a case to be carefully assessed and the usual avenues for settlement explored. A reasonable counter-offer would show a sensible stance being taken by the defendants before trial. That course was not chosen.

[18] Under the previous rule, double costs would have been automatic. Now there is consideration of whether or not the offer could be reasonably accepted.

[19] While there may have been some grounds for not accepting the offer, no response was made, the defendants choosing to “keep their powder dry” for trial. In the circumstances, the plaintiff is entitled to her double costs, which I allow for preparation for trial, examination for discovery, and the trial. I do not allow costs for the notices to admit which I now address.

In my continued efforts to get us all prepared for the New BC Supreme Court Civil Rules I will again point out that Rule 37B will be replaced with Rule 9 under the New Rules. The new rule uses language that is almost identical to Rule 37B which should help cases such as this one retain their value as precedents.