In this personal injury case ICBC argued cruelly and unsuccessfully that a claimant with a meagre income should not be protected from the cost consequences of refusing a reasonable offer to settle.
The injured claimant was on CPP disability pension and had not worked for many years at a full‑time job. His disability pension ended when he turned 65, a year before the car accident. ICBC insisted however in pursing their court costs from this elderly claimant.
The ICBC claimant was injured while backing his vehicle out of a parking spot in a mall. His vehicle was struck from behind by the defendant’s vehicle. A jury found him 85% at fault and the defendant 15% at fault. Section 3(1) Negligence Act provides that the claimant was therefore only entitled to 15% of his legal costs.
An ICBC offer to settle of $33,723 was made over two years after the personal injury lawsuit started and nearly three years before the jury trial. The offer was open for the claimant to accept until the commencement of trial but was never accepted.
The Court assessed the claimant’s damages at $87,000 of which he was entitled to 15% or $13,050 much lower than the ICBC offer on behalf of the defendant of $33,723. As the judges pointed out:
 I recognize that the result of jury trials are difficult to predict, and the outcome on liability and damages was very different than what the plaintiff had anticipated, and very poor from his perspective. Nevertheless, I have concluded that, although I find this a close call, notwithstanding the fact that the medical expert evidence over time weakened the plaintiff’s case, the plaintiff did not act unreasonably in not accepting the offer to settle.(Harder v. Poettcker,2017 BCSC 1407)
This was a somewhat hollow victory for this claimant as he will have to bear about $17,000 in costs due to being 85% at fault for the accident.