Last month I discussed the fact that withdrawn formal settlement offers are capable of triggering costs consequences. Reasons for judgement were released recently confirming this fact and awarding a Plaintiff double costs after besting a formal settlement offer which was withdrawn in the course of trial.
In the recent case (Pitts v. Martin) the Plaintiff was injured in a 2008 collision. The injuries included chronic soft tissue injuries and post traumatic stress which limited the Plaintiff in physical tasks.
Prior to trial she provided a formal settlement offer of $100,000. During the course of the trial the Plaintiff withdrew her formal offer. The trial judgement exceeded her offer by $7,500. The Plaintiff asked for double costs. The defendant objected arguing a withdrawn offer could not trigger costs consequences. Mr. Justice Dley disagreed and awarded double costs. In doing so the Court provided the following reasons: [68] …I am satisfied that in a case like this, an offer made on May 15th would have given the defendant sufficient time to make a reasoned analysis and respond in a timely fashion. It is not an offer that was made on the eve of the trial commencing, without an opportunity to have it fully considered. It is no impediment that the offer was withdrawn at the close the the Plaintiff’s case. I am satisfied that this is an appropriate case for double costs following the offer… To my knowledge this judgement is not publicly available. As always, I’m happy to provide a copy to anyone who contacts me and requests one.
Unreported reasons for judgement were recently released by the BC Supreme Court, Nanaimo Registry, addressing damages for “chronic, but not disabling” soft tissue injuries and post-traumatic stress arising from a motor vehicle collision.
In the recent case (Pitts v. Martin) the Plaintiff was injured in a 2008 collision. Fault was admitted by the Defendant. The extent of the Plaintiff’s damages were at issue. As is common in personal injury litigation, the Defendant produced an expert witness who provided evidence disagreeing with the Plaintiff’s physician as to the extent of the ongoing injuries and their connection to the collision. Mr. Justice Dley was not receptive to this evidence preferring the Plaintiff’s treating physicians. In rejecting the Defendant’s expert Mr. Justice Dley provided the following criticism: [31] Dr. Dommisse provided an opinion that confirms the soft tissue injury. However, he opines that stress aggravates the physical injuries and that with proper counselling the stress would ease off; that would improve the physical injuries. Dr. Dommisse agreed that the stress affectibng Ms. Pitts resulted from the collision. [32] His opinion ignores the fact that Ms. Pitts has had counselling and that she has been provided with coping techniques. Dr. Dommisse was not critical of the counselling that had been provided and deferred that aspect of the injuries to the counsellors who had previously treated Ms. Pitts. [33] His opinion failed to consider that Ms. Pitts required some assistance at work. He conceded that to be a significant factor. [34] Dr. Dommisse noted muscle spasm in the trapezius muscle. However, in his opinion as to whether the collision caused Ms. Pitts’ disabilities, he did not include any reference to the spasms. Instead, he referred to Ms. Pitts’ complaints as being subjective. He did not provide a satisfactory answer as to why such an objective symptom would have been left out of his analysis. [35] Dr. Dommisse failed to consider the fact that Ms. Pitts suffers pain and discomfort from some of her work-related activities, particularly heavy lifting. Those symptoms are brought on without any stress. That significant omission from his report destroys any reliability that might be attached to his opinion that “it is unlikely that Ms. Pitts’ current disabilities were caused by the accident”. [36] Dr. Dommise commented that counselling from Ms. Pitts’ stress and anxiety will likely improve her symptoms. His evidence did not provide any basis for that opinion to be reliable. It ignores the reality that counselling has already been provided and there is no suggestion that the treatment was in any way lacking. I am not satisfied that any further counselling is likely to resolve or further improve Ms. Pitts’ present condition.
In assessing non-pecuniary damages at $60,000 Mr. Justice Dley provided the following reasons: [47] It is now four years post-accident. Ms. Pitts has been diligent in pursuing rehabilitation measures. Ms. Pitts still has some lingering injuries – they are chronic, but not disabling. Ms. Pitts can carry on with her everyday life and work, but she has limitations because she must be careful so as not to aggravate her injuries. She continues to suffer from the post-traumatic stress of the collision. She has learned coping techniques, but that has not eliminated the disorder. [48] Taking into account the injuries sustained and the impact they have had and will continue to have, I assess general damages at $60,000.
As noted this judgement is not reported therefore not publicly available. As always, I’m happy to provide a copy to anyone who contacts me and requests one.