Anderson v. Pieters

June 23, 2017

0

2017, BCSC 954

In a decision released June 8, 2017, the Court declined to award the Plaintiff double costs where the jury awarded significantly more than her formal offer to settle.  In refusing to award double costs, Mr. Justice Saunders said:

[13]   In my view, the most significant factor in respect of the defendants’ non-acceptance of the settlement offers is that the offers were made against the backdrop of a claim that was rapidly and continually evolving, both as to the alleged nature of the plaintiffs injuries and as to the substance of the expert opinion evidence.

[27]   The plaintiffs first settlement offer of $275,000 was delivered on April 11, 2016. The letter conveying that offer listed the plaintiffs injuries as follows:

  1. Accommodative dysfunction (focusing control)
  2. Oculomotor dysfunction (eye movements), with difficulty reading
  3. Visual perceptual dysfunction (visual processing skills)
  4. Heightened sensitivity to bright lights
  5. Acquired brain injury
  6. Cognitive difficulties including impaired concentration, limited ability to focus, impaired mathematical skills and reduced memory
  7. Impaired balance – permanent
  8. Soft Tissue Injury to her neck and lower back, with facet joint injury
  9. Headaches and nausea
  10. Anxiety
  11. Disturbed sleep, with resulting physical and mental exhaustion
  12. Chronic pain.

[28]   On the following day, April 12, 2016 – less than two weeks prior to trial – the plaintiff served the defendants with a second report of the plaintiff’s family physician, Dr. Sank, in which, relying on the opinion of the chiropractor Dr. Blaskovich, he purported to diagnose vertebrobasilar insufficiency (“VBI”), an intermittent loss of blood supply to the brain, which he believed was likely caused by the C1-2 ligament injury identified by Dr. Blaskovich. Dr. Sank opined that this was the probable cause of the plaintiff suffering dizziness, vertigo, migraines, ocular symptoms, balance difficulties, and gait instability.

[29]   This second report of Dr. Sank was the first opinion delivered by the plaintiff from a medical doctor opining that the plaintiff’s symptoms were associated with central nervous system dysfunction. This necessitated the defendants commissioning further rebuttal reports from Drs. Arthur, Dost, Janzen, and David. All of the work of evaluating Dr. Sank’s report, deciding on a defence strategy, and instructing the defence experts had to be undertaken in a limited timeframe.

[30]   In addition, on April 13, 2016, the day after it was served, defence counsel discovered that a substantial portion of Dr. Sank’s second report had been plagiarized. This obviously had profound implications for evaluating the strength of the plaintiff’s case. [31] The plaintiff’s reduced settlement offer in the amount of $195,000 was conveyed on April 14, 2016.

[32]   On April 20, 2016 – only nine days after delivery of the first offer, and six days after delivery of the second offer – the plaintiff withdrew all settlement offers. As of that date, the defence had only just recently received rebuttal reports concerning Dr. Sank’s second report from its experts Ors. Arthur, Dost, and Janzen, and were still awaiting receipt of a further report from Dr. Janzen and a rebuttal report from Dr. David.

[35]   To say that the expert evidence was in flux during the limited period in which the offers were open for acceptance would be an understatement. As I stated in my reasons on the admissibility of Dr. Blaskovich’s expert opinion report, the late service of that report had set off a flurry of reply and counter-reply reports, and further supplemental reports from the plaintiff’s other experts. Many of these reports – especially Dr. Blaskovich’s report, and the second report of Dr. Sank served on April 12 – had very significant substantive and procedural implications.

[36]   I find the defence did not have sufficient time to consider the plaintiff’s reports and the rebuttal reports the defence had been able to marshal, in order to enable a proper, considered evaluation of the risks of proceeding to trial in the face of the plaintiff’s offers. The offers were delivered too late in the day, were made while the expert evidence was still being disclosed, and were withdrawn after only a short period of time. In the circumstances, I cannot find that the offers ought reasonably to have been accepted

[37]   I therefore decline to make any award of double costs to the plaintiff.