ICBC’s offer to settle this personal injury case for $125,000.00 was just above the $121,600 awarded by the court. As a result the judge denied the claimant his costs after the date of the ICBC offer for the first accident and, having found the second car accident caused no injury, awarded costs to the other successful defendant.
The judge was of the view that a rigorous and objective examination of the evidence should have led the injury claimant to conclude that the ICBC offer to settle was one he ought reasonably to have accepted (Vander Maeden v. Condon,2014 BCSC 677 ). Furthermore, in the judges opinion, denying the claimant his costs for the first car accident after the date of the offer to settle gives effect to the principles underlying Rule 9-1.
In the first car accident the claimant was a passenger in a pick-up truck being driven by his friend when the vehicle was struck broadside by an oncoming vehicle. Two years later the claimant had another accident involving a motor vehicle. On that occasion, he walked behind a vehicle that was slowly backing out of a driveway. In order to avoid the vehicle, the claimant twisted his body and quickly moved out of the way. The claimant did not fall and the judge found suffered no injury.
The defendants in both lawsuits were represented by the same ICBC lawyer and he sent an offer to settle both claims for a total of $125,000. The offer was made “after taking into account Part 7 benefits paid or payable” pursuant to the relevant statutory provisions and any “advances paid to date”. The settlement amount also incorporated court order interest. On the issue of costs, the offer provided that the claimant would receive his costs in each action on Scale B with ICBC having their Scale B costs thereafter.
The offer was not accepted. The claimant’s lawyer went on the make a number of inflammatory and prejudicial statements during his closing submissions and as a result the jury was discharged and the case continued as a judge alone(see: 2013 BCSC 1810).
In the reasons for judgment indexed at 2013 BCSC 1389, the judge had awarded the claimant $110,000 for pain and suffering, $10,000 for future care costs and $1,600 in special damages for the first car accident. The total award of damages for the first car accident was $121,600. For the second accident the judge found the claimant 50% responsible but also found that the claimant had suffered no injuries or losses in that accident.
Importantly, the financial impact on the claimant, in the judges view, was a justifiable consequence for his having rejected a reasonable offer to settle.
When reviewing the relative financial circumstances of ICBC, Rule 9-1(6)(c), the judge found that:
 I have little to no evidence regarding the financial circumstances of the defendants and that is probably because they were represented by their insurer, the Insurance Corporation of British Columbia (“ICBC”). The fact that the defendants had insurance coverage and were represented by counsel retained by ICBC is a factor that can be considered in assessing the relative financial circumstances of the parties (see: Smith v. Telford, 2010 BCCA 302). However, this factor will generally only be of consequence when the defendant’s insurance coverage creates an unfair advantage leading to a more protracted proceeding and unnecessary costs for the plaintiff (see: Hunter, para. 22).
 There is no suggestion in the present case that ICBC used its significant corporate resources to create an unfair advantage for the defendants or to unnecessarily prolong the proceedings. Consequently, this factor does not favour either party.
Unlike the old rules of court, pre-2010, our modern Rules of Court allow the court discretion to award costs to a claimant even if they have failed to beat a pre- trial offer (see Currie v. Taylor,2013 BCSC 1071). The judge however took the circumstances into account in refusing the exercise this judicial discretion.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.