This injury claimant alleged a number of injuries including brain injury, which was said to have resulted in a loss of about $4 million in capital, as well as about $1,850,000 income to the date of trial and thereafter. In reasons for judgment indexed at 2014 BCSC 2113, real damages were assessed at $77,750.
This is a case review of the claimant’s application for an award of costs wherein he was awarded his costs up to the date of the offer with ICBC having to bear their own costs and disbursements thereafter.(Barta v. DaSilva,2017 BCSC 410).
Unfortunately it was not until the month before the trial that ICBC made a formal offer to settle for $150,000 plus costs and disbursements. The claimant countered with $970,000 plus costs and disbursements, but this was too close to trial and their figures appeared to have been very far apart.
The judge found that the relative financial position of ICBC versus the claimant is of “no consequence” on the application for costs. The defence was conducted by ICBC, which obviously has much greater financial strength than the claimant but the current law appears to tenuously conclude that unless ICBC used that strength improperly in the litigation the strength of monopoly is a “neutral factor”. Unwittingly uncovering this inequality between ICBC, a very sophisticated litigant, and the claimant the judge comments,
Many plaintiffs in personal injury cases have far more complex conditions than [the claimant] but they must, nevertheless, do their best to make a realistic assessment of their claim when they receive an offer to settle.
It took the claimant seven years to get to trial and the judge found he had not suffered a brain injury and his loss of capital and income were not caused by the accident injuries. The evidence at trial indicated that the claimant lost a lot of money in the financial downturn in 2008 and 2009 and his income is was meagre. As the judge put it,
“I can see no utility in imposing the costs of the trial on the plaintiff.”
The judge ordered the claimant was entitled to his costs and disbursements to the date of the ICBC offer to settle and that thereafter the parties bear their own costs and disbursements. This was in part because ICBC offered this as an alternative, which the judge found to be a generous alternative to the claimant bearing all the costs of the trial.