Personal injury lawyers are often faced with advising clients about offers of settlement. This, claimant gets awarded less than settlement offer case(Brewster v. Li,2014 BCSC 463) illustrates the modern approach BC Courts are taking to pre-trial offers of settlement. If you don’t accept a reasonable offer, expect to lose your costs and disbursements for trial, and maybe more.
The personal injury claimant was driving eastbound in Vancouver when the defendant pulled out from a stop sign and drove across her path. Upon impact, she felt a jolt go through her arms and into her neck and said she experienced immediate pain. At trial the judge awarded her on account of her injuries $418,515.60. The judge was however troubled by the reliability of the claimant’s evidence, particularly the inaccuracy of the information she gave her various physicians and the independent medical experts who examined her.
Before the trial the defendant formally offered to settle for $450,000 “new money” plus costs and disbursements which was more than the judge ultimately awarded.  This offer was rejected by the claimant as she was not willing to settle for less than $650,000 before trial.
The consequences for not accepting a good offer can be tragic but as the Judge points out at paragraph 39 of the decision:

 …The dominant object that animates Rules 9–1(5)–(6) is the promotion of reasonable settlements. The plaintiff’s position, that she be awarded the costs of the trial notwithstanding the Last Offer, completely ignores this object.

I consider that a result which properly gives effect to Rule 9-1(4) and which properly reflects the additional considerations that I have identified, would be to deprive the plaintiff of all of her costs, including all disbursements, after February 11, 2013. This result accords with the result arrived at by the court, for example, in each of Tompkins at paras. 28-31 andWafler at para. 41.

Even though pre-trial offers to settle cannot be referred to at trial, a party can rely on a formal offer to seek additional costs if they are successful. Watch our short video to learn more about making offers to settle before trial:

Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

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