In this ICBC settlement injury case ( Jayetileke v. Blake) the ICBC injury claimant was the victim of a rear end collision. In addition to soft tissue injuries, she began to suffer from vertigo. ICBC admitted fault for the car accident and the trial was restricted to the assessment of the claimant’ s losses.
The injury claimant was awarded damages less than ICBC’s offer to settle. In the ordinary course of events, the person who had offered to settle the claim for more than the final judgment would be entitled to costs incurred after the other party had been provided a reasonable period of time to consider the settlement offer. The unique factor in this case is the unbelievable expert evidence presented on behalf of ICBC.
Judge Dley stated that: “At the centre of the controversy is Dr. Davis, who began his testimony with the following commentary:
THE CLERK: Thank you. Please state your full name and spell the last name for the record.
A First name is Hymie, H-y-m-i-e, and my surname is Davis, D-a-v-i-s.
THE CLERK: Thank you. Please sit down.
A Thank you.
MR. HERMAN: Thank you. My Lord, Dr. Davis’ report appears in Exhibit 11, and my friend has kindly acknowledged Dr. Davis’ qualification to conduct an independent psychiatric evaluation, and I therefore tender him for the purposes of providing expert opinion on an independent psychiatric evaluation.
A Do you have any scotch in there or is it plain?
THE CLERK: Just water.
A Thank you. I’m not used to water without scotch.”
ICBC made a formal offer to settle for $122,500. The offer was in accordance with the provisions of the former Rule 37B, which is now Rule 9-1, Offers to Settle: Supreme Court Civil Rules, Court Rules Act, B.C. Reg. 168/2009. At the time the ICBC settlement offer was made, all of the medical reports and expert opinions had been exchanged.
The personal injury trial lasted eight days and judgment was granted for $113,095. The award was $9,405 less than the ICBC offer to settle. In spite of the concerns that the BC Courts have expressed, ICBC used Dr. Davis as an expert in opposition to the claimant’s complaints of depression and anxiety. The courts frank assessment of Dr. Davis found his evidence to be unreliable and the Judge went in to find that Dr. Davis was an advocate, argumentative, defensive, non-responsive, and prone to rambling discourses that were not relevant to the questions posed in cross-examination.
Dr. Davis was asked to leave the courtroom so that the lawyer could talk to the judge. Unbelievably, Dr. Davis was seen peeking into the courtroom and listening to the discussion. He was again asked to leave by the judge. In spite of what the judge said, the ICBC expert, Dr. Davis, hovered within hearing distance and, on four occasions, stuck his head into the courtroom to hear what was occurring.
Furthermore, Dr. Davis conceded that without his notes, he would not be able to recall the discussion with the injury claimant. He relied on his notes to prepare his report. The ICBC settlement offer was made when the injury claimant was expected to give weight to the ICBC expert.
As the Judge pointed out:
“For a trial to be fair, the Court must allow each party to put its best case forward. Where a party seeks to advance its position with reckless abandon seeking only the ultimate goal of victory and using questionable evidence along the way, that party risks sanctions in the form of costs penalties. Where the conduct is reprehensible and deserving of reproof and rebuke, the penalty is special costs. “Costs considerations are meant to guide counsel and litigants in the choices and strategies they pursue in litigation”: Karpodinis v. Kantas, 2006 BCCA 400,  B.C.J. No. 2074 at para. 4.
 In this case and against the backdrop of previous judicial comment, the defence tendered Dr. Davis. He was nothing more than an advocate thinly disguised in the cloak of an expert. That is conduct deserving of rebuke and from which the Court disassociates itself.
 Dr. Davis attempted to inject levity to the proceedings when he was introduced to the Court – his reference to scotch can only be taken as an attempt to be humorous. However, these are serious and solemn proceedings and should be treated as such. His opening comments were unnecessary and unhelpful.
 Dr. Davis’ refusal to remove himself from earshot of the Court proceedings despite repeated requests was reprehensible. His conduct simply confirmed a lack of respect for Court proceedings.
 Under these circumstances, special costs are to be awarded against the defendant [ICBC].”
In the end the ICBC car accident claimant was awarded costs as if there had been no ICBC offer to settle made. ICBC also received no costs. Posted by Mr. Renn A. Holness
Issue: Should ICBC settlement offers be ignored if the ICBC medical expert is biased?