The claimant was injured when he fell while riding a bus.  We reviewed the  trial decision, Injury on Bus Fault of Driver and Elderly Passenger. The Court assessed the claimant’s total compensation at two thirds of $35,100, which is $23,376.66. This article is a review of the claimant’s  application to recover two thirds of the costs of the personal injury lawsuit, including the costs of the trial, in accordance with Rule 15-1(15) of the Supreme Court Civil Rules (Bideci v. Neuhold, 2014 BCSC 1212).

Several offers to settle were made by both parties and this application only concerned the last two offers before the trial, both of which were made by the defendants.First,  the defendants delivered an offer to settle for $32,500 plus costs and disbursements (the “Formal Offer”). The Formal Offer contained the “magic language” required by Rule 9-1(1)(c)(iii) and contained the following terms:

This offer can be withdrawn only by written notice by the Defendants to the Plaintiff.

This offer to settle does not expire by reason that a counter offer is made or that the Defendants have made subsequent offers that do not attract costs consequences under Rule 9-1.

 The Informal Offer was a $2,500 increase available to the claimant for a period of two days, at which time the Formal Offer was suspended. After that, the Formal Offer was back on the table until the last business day before the trial. The judge found that there was only one offer open for acceptance at any given time which was further supported by the of the Formal Offer regarding how and when that offer could be withdrawn or revoked.
In finding that the Formal offer ought to have been accepted the Judge concluded,

[57] It is clear that liability was very much in issue in this proceeding. There is also the fact that in light of the plaintiff’s health issues prior to the Accident and his advanced age this placed any future losses within a reasonably finite timeframe. Accordingly, the claim for damages was relatively modest.

[58] In my view, under the set of circumstances to which I have referred and which existed during the trial in February 2014, the risks the plaintiff assumed in not accepting the Formal Offer ought to have been readily apparent to him when he received the Formal Offer, or within a reasonable period of time thereafter. In any event, it remained open until the last business day before the trial. I find that the plaintiff ought reasonably to have accepted the Formal Offer.

 The Judge awarded the injury claimant two thirds of his assessed costs and disbursements to the date of the Formal Offer. However the claimant was order to pay the defendants 25% of their assessed costs and disbursements from the date of the Formal Offer to the conclusion of the personal injury proceeding.
The Judge appeared to have been somewhat sympathetic to the claimant finding that he had already suffered some significant financial consequences in proceeding to trial. The amount of damages awarded was approximately $10,000 less than what he would have received had he accepted the Formal Offer, without taking costs into account.
Posted by Personal Injury Lawyer Vancouver Mr. Renn A. Holness, B.A. LL.B.

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