In this ICBC personal injury case the claimant was awarded $622,500 after she was injured by a vehicle that turned left across the path of her vehicle. The claimant had however made an offer to settle to ICBC one week before the trial for $315,000 plus costs and disbursements, which was rejected. The claimant was therefore entitled to an award for her costs of the trial including double costs from the date of the offer (click here to review Risling v. Riches-Glazema, 2017 BCSC 252).
ICBC claimed at trial that the claimant had failed to take reasonable steps to mitigate her losses and in particular has failed to engage in a proper exercise program or to take less physically demanding work. ICBC also submited that the total damages to be awarded should be no greater than $106,900 subject to a deduction for the claimant’s failure to mitigate.
The offer to settle of the claimant reads:
This is an Offer to Settle under Rule 9-1 of the Supreme Court Civil Rules.
The Plaintiff reserves the right to bring this offer to the attention of the Court for consideration in relation to costs after the Court has rendered judgment on all other issues in this proceeding.
The Plaintiff offers to settle this proceeding for the sum of Three Hundred and Fifteen Thousand Dollars ($315,000.00) for all heads of damages, including claims for non-pecuniary damages, past income loss/loss of opportunity, special damages, cost of future care, and future loss of income/diminishment of earning capacity. The amount offered takes into account Part 7 Benefits paid or payable pursuant to Section 83 of the insurance (Vehicle) Act. This amount takes into account tort advances previously made. The sum of $315,000.00 excludes costs and disbursements.
For greater clarity, in the event that this offer is accepted by the Defendants, the Plaintiff will be entitled to her costs and disbursements incurred to the date of acceptance of this offer.
This Offer to Settle is open for acceptance until 4:00 p.m. on the last normal business day preceding the 1st day of trial, after which it is revoked except insofar as reference being made in relation to the issue of costs.
If any aspect of the Plaintiff’s Offer to Settle is unclear, kindly contact the writer as soon as possible.
Kindly acknowledge service of the enclosed by signing the attached duplicate copy of this letter and returning same to the attention of the undersigned.
The judge found that this offer conformed with the requirements of Rule 9-1(1)(c) of the Supreme Court Rules and:
- The claimant’s case was well known to ICBC at the time of the offer. The claimant had been examined for discovery on two occasions; had attended two medical examinations at the request of the defendants, and a mediation had taken place;
- the offer was made one week before the trial began which gave ICBC a full opportunity to consider it;
- the offer had a relationship to the claim and could not be characterized as a “nuisance offer”; and
- the offer was expressed in plain language and thus easily evaluated.
The final judgment of the court greatly exceeded the offer that was made to ICBC. The claimant described the heads of damages she would advance at the trial and advised that the offer took into account “Part 7 Benefits paid or payable pursuant to Section 83 of the Insurance (Vehicle) Act”.
ICBC requested a stay of the award pending the outcome of their appeal. However, the judge considered the better procedure to be for ICBC to apply to the Court of Appeal so that request was denied.
In a medical note at trial the doctor recorded the claimant “was improving markedly with the kinesiology but ICBC had withdrawn the funds for that. She has regressed”.
It appears that ICBC’s bullying behaviour in this case is in keeping with their recent pattern of wastefully reprehensible conduct. ICBC is currently under independent review.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.