In this minor car accident Jury trial case (Gehlen v. Rana, 2009 BCSC 1484) the injury claimant was awarded $13,486 by the Jury yet before the trial ICBC, the insurance company defending the at fault driver, had offered $22,000.00 to settle the case. The trial concerned both liability and damages for a motor vehicle accident and she claimed she was injured when the car driven by her husband was rear-ended by the other driver’s vehicle. 
The other driver admitted responsibility for the collision but pleaded that the injury claimant was not a passenger in the vehicle.  The accident was also categorized as a low velocity impact that caused minimal damage to the vehicle ($143.00). 
The claimant alleged in her lawsuit that she suffered aggravation of pre-existing myofascial pain, depression, headaches, insomnia, numbness in hands, injury to shoulder,  injury to neck, and soft tissue injuries. Seven months prior to the trial, ICBC delivered an offer to settle the claim for $22,000 plus reasonable and necessary disbursements.  The claimant did not accept the offer, but made an informal counter-offer of $173,145.66 including costs.
Surprisingly the trial judge, despite the low Jury verdict, denied ICBC their costs stating that the $22,000 offer seven months before trial was notan offer that ought reasonably to have been accepted.  Furthermore, the trial judge awarded the claimant her costs without any finding that there was sufficient reason for bringing the claim in the Supreme Court.  Both these finding were successfully appealed.
As the Court of Appeal stated, “this was a case where it was plain and obvious at all material times that this was a proper action to be tried in the Small Claims Court.” The injury claimant was therefore only entitled to reasonable and necessary disbursements up to the day of the ICBC offer.
The trial judge was found to have erred in principle in considering an issues extraneous and unassociated with the offer to settle. One of the trial judge’s reasons for finding that the offer to settle ought not to have been reasonably accepted was that the claimant did not anticipate the vigorous attack on her credibility. The Court of Appeal clearly did not agree with the trial judge stating:

“[50]   In my view, this was a classic case in which the defendant was obliged to closely probe the plaintiff’s evidence.  Her injuries were soft tissue injuries and depended for proof on the plaintiff’s subjective complaints of pain in the face of a significant history of similar pre-accident complaints.

[51]  I agree with the defendant’s submission that the drafters of Rule 37B could not have intended that a party’s failure to anticipate credibility issues would defeat the operation of a reasonable offer to settle.  In concluding otherwise, the trial judge erred in principle.”

The ICBC offer to settle was one that ought reasonably to have been accepted and formed the basis upon which the Court of Appeal exercised the discretion to award the defendant his costs.  The injury claimant was also ordered to pay the costs of the appeal. Take a read of my prior post when ICBC was not awarded costs after an offer ought to have been accepted. Posted by Mr. Renn A. Holness

Leave a Reply

Your email address will not be published. Required fields are marked *

Post comment