When this personal injury decision came out awarding $36,042.30 I called it A Case Study into What Not to Do in an ICBC Injury Claim. The ICBC claimant had sought an award of damages exceeding $2 million and after 33 days in trial almost all of the claims of loss were dismissed. In this follow up decision the Judge awarded ICBC their legal fees required to defend both lawsuits.
This catastrophic result for an injury claimant is a cautionary tail for people wishing to mislead doctors, government bodies and the court about their level of disability following a car accident injury ( T. v. ICBC et al, 2015 BCSC 1502).
There were several offers to settle made before trial that can be summarized as follows:
- 2 years before trial ICBC delivered an offer to settle the claims arising from the first car accident pursuant to Rule 9-1 in an amount of $220,000 and the defendant in the second accident delivered an offer to settle in the amount of $30,000, for a total of $250,000. The offers were open for acceptance until 4:00 p.m. on the last business day before the start of the trial. The offers were not accepted.
- About one year later the claimant offered to settle both lawsuits for $785,000 including advances and interest to that date but excluding settlement costs, ie, costs incurred up to settlement. The claimant’s offer to ICBC was not accepted.
- Approximately three weeks into the trial, the claimant made a formal “policy limits offer” of $1,000,000 in each lawsuit for a total of $2,000,000 which was also not accepted.
Before trial, ICBC had made advances to the claimant totaling $41,695. The advances included payments for treatments, $35,000 on account of the tort claims and $4,800 for Part 7 temporary total disability benefits. The advance payments were made pursuant to an advance settlement agreement which included the following terms:
1. If I sue the other owner(s)/driver(s) the total payment will be deducted from any judgment I may obtain…
2. If I sue the other owner(s)/driver(s) and a court awards me less than the amount of the total payment, I agree to repay ICBC the difference.
3. If I sue the other owner(s)/driver(s) and a court awards me less than the amount of the total payment, I agree to pay ICBC any costs of this litigation that the court may assess against me.
Sadly, the amount advanced by ICBC($36,895) exceeded the amount awarded at trial ($36,042.30) by $852.70. The claimant was entitled to a zero judgment so it was clear that the substantially successful party in this case was the defence, which included ICBC. Therefore, this case was dismissed and the defence was entitled to its costs.
In awarding special costs to the defendants the judge reviewed just some of the unbelievable conduct of the claimant which included an attempt to intimidate a witness:
[36] The conduct of the plaintiff which must be considered most outrageous and reprehensible for the purposes of a special costs award were the circumstances under which her former friend… came to be a witness at trial for the defence. Those circumstances are described commencing at para. 188 of my reasons for judgment, which included reference to a voice mail message left by the plaintiff two days before Ms. A was to testify. That message can only be interpreted as an attempt to intimidate Ms. A from testifying. Why the plaintiff would leave a voice mail message of that nature which could and did come back to haunt her is a mystery; however, it is reflective of the behaviour of the plaintiff throughout the trial.
[37] I have no doubt that the actions of the plaintiff at trial and outside the courtroom have amounted to an ongoing effort to deceive the court which conduct deserves rebuke.
[38] I agree with the principles in awarding special costs listed by Madam Justice Gropper in Westsea Construction Ltd. A court must show restraint and must be satisfied of special circumstances to justify the award. The conduct rationalizing an award of special costs must also be “reprehensible”. Those principles are present in this case and are supported by the conduct of the plaintiff detailed in the reasons for judgment for the trial and earlier in these reasons.
[39] The defence is entitled to special costs to be taxed by the registrar, such costs as incurred by the defence from the commencement of each action until the conclusion of the trial.
Wow! For ICBC claimants wanting to do the right thing watch our short video about how to settle an ICBC injury claim:
Posted by ICBC Claims Lawyer Mr. Renn A. Holness, B.A. LL.B.- Always working for the injured, not ICBC or any other insurance company.