In many personal injury cases offers to settle are made before going to trial to avoid the cost and risk. These offers are referred to as “without prejudice offers of settlement”.
In this tragic pedestrian crosswalk case(Paskall v. Scheithauer,) The claimant was asking for some $2 million but the jury only awarded her $82,400 and found her 20% at fault for her injury. The claimant alleged to have suffered  a traumatic brain injury which, based on the award, must have been rejected by the jury.
The Court of Appeal disagreed with the trial judge decision to award the claimant her costs. The Court of Appeal awarded the defendant, ICBC insured, their costs after a first without prejudice offer of $300,000, capped so that the amount recovered by ICBC does not exceed the amount recovered by the claimant for her costs up to the ICBC first offer. ICBC was entitled to their costs thereafter.  The costs of the parties were ordered set-off against each other.
After a 19 day trial of this personal injury action, a jury found the defendant 80 per cent liable for the claimant’s injuries, but awarded damages that were less than 10 per cent of the ICBC’s  without prejudice formal offer to settle of $700,000.
The injury claimant was a 27 years old  pre-school teacher and day care worker. She was 20 when she was struck by the defendant’s car while she was a pedestrian in a marked crosswalk.
Importantly, there was no suggestion that the ICBC offers were unreasonable.  The issue was whether they “ought reasonably to have been accepted”.  In the Court of Appeal’s view the judge’s conclusion that the appellant could not evaluate the reasonableness of the last offer was based on an error of principle: imposing an obligation on ICBC to provide evidence to the claimant on which she could evaluate the reasonableness of the offer. It was clear from the comments of the trial judge that the personal injury lawyers were quite capable of assessing the reasonableness of the first offer.
For more information about ICBC offers of settlement watch our short video about Without Prejudice Offers to Settle.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

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