Once a claim for personal injury is settled there is often post settlement negotiations to award the reasonable case costs. This post settlement negotiation can have a dramatic impact on the money a claimant gets in their pocket after fees, expenses and taxes.
In this personal injury case the defendants served the claimant with an offer to settle liability, based on an apportionment of liability at 26% against the defendants and 74% against the claimant. The claimant did not accept the defendants’ offer and the Court apportioned liability 50% to each of the claimant and the defendant (Kimber v. Wong,2014 BCSC 2446).
In the car accident the claimant was attempting to drive through the intersection of 49thAvenue and Ross Street in Vancouver, British Columbia when he was struck by the defendant’s left-turning vehicle.
The defendants then served an offer to settle the injury claim for $150,000 “plus costs in accordance with this offer to settle”. The defendants’ offer to settle provided:
The plaintiff is entitled to his costs of the action at Scale B and necessary and reasonable disbursements to the date of delivery of this offer assessed in accordance with Rule 14-1 of the Supreme Court Rules (B.C. Reg. 168/09) …
The parties finally agreed to settle the personal injury claim for $184,500. That amount accounted for the 50% apportionment of liability to the claimant and Costs were to be agreed or assessed at a later date.
The usual rule is that a party to litigation is liable for the court costs in the same proportion as his or her liability for damages. This is set out in s. 3(1) of the Negligence Act:
3 (1) Unless the court otherwise directs, the liability for costs of the parties to every action is in the same proportion as their respective liability to make good the damage or loss.
Having said that, where, as here, the defendant has not suffered any damage, the claimant has no liability for costs and the defendant is liable for the claimat’s costs in the same proportion as the defendant is liable for the claimant’s injuries and losses.
When deciding whether applying the general rule under s. 3(1) of the Negligence Act would produce an unjust result, the court will consider the nature and conduct of the action and whether there was anything “untoward” in the conduct of the litigation. Here, both parties conducted the three-day liability trial fairly and efficiently. The defendants did not engage in any conduct that was untoward, or calculated to delay the resolution of this claim.
The claimant was unable to demonstrate that an award of costs under s. 3(1) of the Negligence Act would be unjust and the claimant was only awarded 50% of his court costs following the out of court settlement of the personal injury claim.
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Posted by Vancouver Personal Injury lawyer Mr. Renn A. Holness, B.A. LL.B.