In this personal injury case a formal ICBC offer to settle in the amount of $77,400 was accepted by the claimant just two weeks before an 8 day trial.
ICBC conducted surveillance of the claimant starting the day after the defendant made the offer to settle. The defendant’s therefore claimed the cost of the investigation in the amount of $2,233.24 against the claimant under the terms of the offer(Tomas v. Mackie,2015 BCSC 364).
This ICBC injury claim involved the assessment of legal costs from the settlement of a claim arising from a motor vehicle accident which occurred in British Columbia. As a result of the motor vehicle accident, the claimant suffered soft tissue injuries to the neck, shoulders, and back; an aggravation of a pre-existing fibromyalgia syndrome; an aggravation of pre-existing chronic mechanical back pain.
The accepted offer stated as follows:
The defendant… offers to settle this action in its entirety on terms that upon acceptance of this offer to settle:
(a) the plaintiff…will be entitled to payment by the defendant of $77,400 (the “Settlement Payment”); and
(b) the parties will be entitled to costs in accordance with this offer to settle (the “Settlement Costs”).
The Settlement Payment (a) is offered after taking into account Part 7 benefits paid or payable…; (b) is offered after taking into account any advances paid to date; (c) includes court order interest; and (d) excludes the Settlement Costs.
On acceptance of this offer, the parties agree that subject to the terms and conditions of Appendix A:
1. The plaintiff is entitled to her 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 Civil Rules, B.C. Reg.168/09 (the “Civil Rules”); and
2. The defendant is entitled to her costs of the action at Scale B and necessary and reasonable disbursements from the date of delivery of this offer assessed in accordance with Rule 14-1 of the Civil Rules.
In awarding the defendant’s the cost of the surveillance the court pointed out:
…There was no viable option to test the veracity of the plaintiff’s evidence other than through surveillance… photographs obtained through surveillance appear to show the plaintiff using and extending her right arm… Although surveillance in this case occurred late in the day, I am satisfied that the defendants’ theory of the case, the limited options available, and the likelihood the case would proceed to trial, justified video surveillance in all the circumstances. I find the surveillance was both necessarily and properly incurred. The $2,233.24 in surveillance costs was reasonable and proportional in amount considering the circumstances.