An ICBC injury claim always gets to a point where offers to settle have to be made. If an injury claimant makes a reasonable offer and ICBC refuses to to accept the offer, the Court can punish ICBC if the court award in more than the offer. However, the rules of court allow judges to use a discretion which is often unpredictable, as is evident in this personal injury case study.

 The claimant was involved in a motor vehicle accident while  driving west on Maclure Road in Abbotsford. The claimant argued that, in addition to various physical injuries, he suffered a mild traumatic brain injury  in the car accident and that his cognitive and emotional functioning, in various respects, were significantly impacted.

An award of  $431,169.36 was made reduced by twenty five per cent, on account of the claimant’s 25% responsibility for the car accident, giving rise to a net award of $323,377.02.

The claimant argued that he ought to receive double costs after his personal injury lawyer had formally offered to accept the sum of $265,000, exclusive of all advances or benefits previously paid, plus costs in accordance with Rules 9-1 and 14-1.

Amazingly, in refusing double costs the judge stated,

[25]  Accordingly, I am satisfied that the defendants, in declining to accept that Offer, acted reasonably. The defendants’ measured assessment of the whole of the evidence could or would have caused them to conclude that the plaintiff would likely be unable to make out a central and critical aspect of his case – that being that he had suffered a mild traumatic brain injury in the Accident. The corollary of that conclusion would be that the Offer considerably exceeded what the plaintiff might reasonably be awarded at trial. Certainly it was reasonable for the defendants to conclude that the Offer fell outside of the “range of reasonable outcomes” that could be anticipated: Haigh v. Kent, 2013 BCSC 298 at para. 15, Tompkins v. Bruce, 2012 BCSC 833 at para. 29 and Johal v. Radek, 2016 BCSC 1170 at para. 52.

[26]  I do not consider that any of the other factors that arise under Rule 9-1(6)(b)-(d) alters this conclusion or the exercise of the discretion that is conveyed under Rule 9-1(6). For example, the “relative financial circumstances of the parties” (Rule 9-1(6)(c)) is not really engaged. There is no suggestion that the defendants misused their financial position during the conduct of this action. Similarly there is no suggestion that there is “any other factor” (Rule 9-1(6)(d)) that informs the present analysis.(Sharma v. Chan,2017 BCSC 1651)

Whether to accept an ICBC offer just got a bit more difficult as this case continues to make it unclear whether claimants will be rewarded, or punished, for making reasonable offers to settle. The fact that the claimant had offered $265,000,  which was refused, and was awarded over $323,000 should be enough to entitle a litigant to double costs. However, the court has made the analysis much more complicated and unpredictable.

Posted by ICBC injury lawyer Mr. Renn A. Holness B.A. LL.B.working only for the injured

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