A $222,000 offer to settle a car accident injury claim was rejected and after a ten day trial a jury awarded $53,000. In light of the juries award the claimant was denied the costs of preparation and attendance at trial (Wafler v. Trinh,2014 BCCA 95).
The Insurance Corporation of British Columbia  had made three offers to settle and all three offers exceeded the jury’s award of damages. ICBC appealed the award of costs alleging the judge erred in not awarding costs from the date of the first offer, which was made almost two and a half years before the trial.
The claimant suffered significant lower back pain and some pain in his right buttock and right thigh.  Back surgery alleviated, but did not resolve, his low back and right side pain. The claimant had some pre-existing degeneration of the spine at the L-4/L-5 level as well as some spondylolisthesis at that same level. The question was whether his ongoing low back difficulties were caused by the accident. The jury obviously did not accept that the accident resulted in the surgery, which became complicated.
In denying ICBC’s appeal the Court of Appeal pointed out at paragraph 83:

In my opinion, the judge adequately considered the factors under Rule 9-1(6) which were relevant in this case. Most significantly, the defendant’s contention that the plaintiff in this case did not suffer any consequences from his failure to accept the offers to settle ignores the fact that, as a successful party, he was deprived of his costs and disbursements from December 21, 2011, approximately six weeks before the jury’s verdict made on February 3, 2012. The verdict followed a ten day trial. Thus, the impact of the judge’s costs order was to deprive Mr. Wafler of taxable costs for the preparation of and attendance at a ten day trial, together with disbursements incurred after the offer, which presumably included fees for attendance by experts.

In these circumstances, I do not think it can be fairly said that the plaintiff in this case was not penalized for his failure to accept the defendant’s offer. In my view, the costs order reflected the underlying purpose of Rule 9-1.

 Being denied the costs of a ten day trial are very significant cost consequences considering the modest jury award for this personal injury. To learn more about costs read my short article reviewing another ICBC settlement and explaining costs and disbursements.
Post by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

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