Generous ICBC Offer to Settle Refused and Injury Claimant Must Pay Expenses

This is an ICBC car crash injury costs case which happened at the intersection of 64th Avenue and 152nd Street in Surrey, BC(Gatzke v. Sidhu, 2011 BCSC 1214). It was dark and raining.  The injury claimant was westbound on 64th Avenue and  her evidence was that she was planning to drive further along 64th and eventually to turn right and proceed north up 144th Street. The judge however found that as the claimant approached the intersection, having already moved into the right-hand lane, the claimant’s right turn signal was on and it appeared she planned to turn right. The other driver relied on the claimants movements and turned left causing the accident.
In Oral Reasons for Judgment  indexed at 2011 BCSC 988, the injury claimant was  found the 70% at fault for the car crash and was awarded only 30% of her losses which were assessed at $31,500, plus physiotherapy user fees. It appears that the total compensation  payable to the injury claimant amounted to something less than $10,000.
However, the insurance Corporation of British Columbia, ICBC, had  made an offer to settle prior to trial, in the form required by Rule 9-1, and therefore sought payment  in respect of steps taken after delivery of the offer.  The offer  was in the amount of $50,000.
In making an award for costs the Judge found,

“[11] The evidence, over all, was such that there was a very real possibility of the plaintiff only obtaining a modest damages award.

[12] On behalf of the plaintiff, it is said that acceptance of the offer would have left the plaintiff in dire financial circumstances.  The offer, however, would have provided the plaintiff with a substantial sum of money and payment of all of her costs to the date that the offer was made.

[13]  The offer was very generous, and ought to have been accepted…

[18] This appears to have been a case where both parties undertook a course of action based on an overestimation of the risk to the defendants.  There is no compelling case, in the circumstances, for awarding the defendants the entirety of their post-offer costs.  Given the plaintiff’s financial circumstances and the very modest damages, the purpose of the Rule will be met by awarding the plaintiff 30% of her costs to the date of the offer, and awarding the defendants only the disbursements incurred in association with the attendance at trial of their expert witness, Dr. Sovio.  Dr. Sovio’s attendance at trial was only required for cross-examination at the plaintiff’s request, and it is appropriate that this cost be borne by the plaintiff.  That amount is to be set off against the plaintiff’s award of damages.”

Posted by Mr. Renn A. Holness