The Supreme Court has confirmed that it is not unreasonable for a car accident claimant to reject an ICBC offer if the medical evidence supports a claim of chronic pain not recognized in the offer (Bains v. Antle, 2017 BCSC 590). This claimant was awarded only $37,800 by a jury but was still awarded her court costs by the judge, despite failing to accept an ICBC pre-trial offer of $185,000.
ICBC is a government created auto insurance monopoly which defends at fault drivers and heavily funds the denial of personal injury claims. As the Judge points out, “it is evident that an order requiring the plaintiff to either pay the well-funded defendants’ costs, or in the alternative denying the plaintiff her costs… would result in a pyrrhic victory and could have the effect of discouraging plaintiffs from pursuing valid claims.”
The claimant was injured in a motor vehicle accident and could not agree on a settlement amount with ICBC. The claimant said she suffered chronic injuries to her shoulder and neck, which have impaired her ability to work in her position as a medical claims adjuster and that the pain also hindered her ability to care for her children.
The claimant went to court attempting to obtain over a million dollar award for her soft tissue injury but a jury hearing the case awarded her $37,800.
Before trial the claimant presented a formal offer to settle in the amount of $675,000 plus costs and disbursements at Scale B. 4 days later ICBC presented a formal offer to settle in the amount of $185,000 new money plus costs. The next day the claimants personal injury lawyer advised that the claimant would be seeking in excess of $1,500,000 for “pecuniary damages alone” at trial and advising that if the jury verdict exceeded the claimant’s offer to settle, she would be seeking double costs.
ICBC on behalf of the defendants then presented a new formal offer to settle, revoking the previous offer and offering $185,000 old money which included almost $6,000 in Part 7 benefits (ICBC accident benefits). In response, the claimant presented a new formal offer to settle in the amount of $337,500 new money plus costs and disbursements.
The evidence available to the claimant at the time that the settlement offers were rejected included expert reports in respect of past wage loss, loss of future earning capacity, and cost of future care. As to the ICBC offer of $185,000 the judge states,
I am content that the formal settlement offer … was not a “nuisance offer”. However, given the circumstances discussed above, I agree with the plaintiff that it was not unreasonable to reject the defendants’ formal settlement offer of approximately $180,000
Having regard to what was known to the claimant and ICBC before trial, the court was not convinced that the ICBC claimant ought to have anticipated a jury award substantially lower than the ICBCs’ final offer to settle.