What happens if a claimant does not accept an ICBC offer and the court awards less than the amount offered? Are you forced to accept whatever ICBC offers? Is it a factor that ICBC is a big fish in the small pond of personal injury? Today’s ICBC offer to settle case shows that not accepting an offer does not always result in an award of costs against the claimant and the claimant’s financial ability, being the small fish in the pond, is now taken into account by the courts when awarding costs.
ICBC had made an offer of $125,000 plus 70% of costs and the claimant rejected the offer. The judge awarded $79,000, but still gave the claimant 100% of the case costs (Anderson v. Kozniuk, 2016 BCSC 783).
With the changes in the rules in 2010 relating to offers to settle there is much less certainty over the consequences of a failure to accept a reasonable offer. In this personal injury case the main issue was the claimant’s assertion that he sustained a mild traumatic brain injury as a result of the accident. In trial reasons indexed at 2014 BCSC 1206 at paragraphs 180-81, the judge awarded the claimant $65,000 for his pain and suffering. He received $5,000 for past income lost and $3,000 as an in trust claim to the benefit of his parents. He also received a meager $1,500 for future losses relating to additional surgery. He received all of the special damages that he claimed. Those awards totalled $78,897.33.
The claimant’s position was that he should be entitled to 100% of his costs because he was successful in the claim. The defendant seeks an order that she pay 70% of the claimant’s costs and disbursements to the date of the second ICBC offer, and the claimant pay 100% of the defendant’s cost after that date. The second formal ICBC offer to settle for $125,000, plus 70% of the claimant’s taxable costs and disbursements. This was not accepted and the claimant responded with a second formal offer to settle for $200,000 plus taxable costs and disbursements.
In most personal injury cases there is a pre-trial attempt to negotiate a settlement of the case. This may be informally on the phone, in person or in a more formal setting such as a mediation or judge led settlement conference.
The purpose of an award for costs, in addition to indemnifying a successful litigant (which never really happens) includes deterring frivolous actions or defences, encouraging conduct that reduces the duration and expense of litigation, encouraging litigants to settle whenever possible and requiring litigants to make careful assessments of the strengths and weaknesses of their cases to discourage the continuance of doubtful cases.
There were two main issues in this application. First, whether s. 3(1) of the Negligence Act, R.S.B.C. 1996, c. 333 should be applied in order to apportion costs between the parties according to the respective degrees of liability and, secondly, the impact of the offers to settle on the costs award.
The judge was mindful that costs awards should not punish claimants from taking forward meritorious claims. The claimant submitted that the award of costs in this case would actually exceed the total amount of the judgment.
The claimant also said that the defendant was defended and funded by ICBC whereas the claimant is impecunious having lost the ability to work, and previous cases have held this is a proper consideration.
The court found that it would be unfair and unreasonable that the claimant be ordered to pay costs to the defendant in this case. as the judge pointed out,
Remembering that ultimately the result must not impose injustice or unfairness on either party, I exercise my discretion and conclude the normal rule of apportionment does not apply and therefore the plaintiff is entitled to 100% of his costs at trial. Because he has been successful on this application, I also award him the costs of this hearing.
Before settling a personal injury case learn more about how to respond to an ICBC settlement offer.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.