Double Costs Reduced for Late Offer as Jury Dismisses Claim

In this case review the injury claimant was rear-ended in a car accident and claimed a loss of $500,000 due to her injury.  The defendants admitted liability and called for a jury trial. About two months before the jury trial the defendants made an offer to settle the case for $50,000 plus taxable costs and disbursements.

Two weeks before the jury trial the defendants served the claimant with video surveillance done of her exercising briskly on a treadmill and elliptical machine after the accident. This was totally inconsistent with the facts given to her experts which included her being unable to walk for more than 15 minutes. The judge commented on the video this way:

[25] …There were inconsistencies between what it showed and what she relayed to her experts.  It was also obvious these inconsistencies would have a significant impact on her case… Often video surveillance is not compelling; here it was.(Brar v. Ismail,2018 BCSC 1573)

One week before the trial the claimant offered to settle for $65,000 plus taxable costs and disbursements.  The offer was not accepted, and no counter-offers were made to either offer.

After a two-week trial the jury refused to award the claimant any damages. This was the case in which the claimant did not call the psychiatrist who had been treating her and the judge ruled that the jury should be given an instruction regarding its ability to draw an adverse inference. It is obvious from the result the jury did not accept the experts that where called.

In denying full double costs the judge was also critical of the defendants for not disclosing the surveillance sooner. As the judge stated at para 37:

 There was nothing to prevent the defendants from providing the surveillance far sooner, given its importance… The fact that it was disclosed in compliance with the rules does not mean that its timing cannot be a consideration with respect to the discretion to award double costs.  As well the $65,000 offer, which was not delivered until five days before trial, could have been delivered sooner.  This would have given the plaintiff more time to consider her position, without prejudicing the defendants.  Therefore, in my view, the defendants should receive ordinary costs up to and including the first five days of trial and double costs after that.