Carfra Lawton LLP | Victoria BC

Defence offers to settle should have been accepted

In Gill v. McChesney, 2018 BCSC 1378, the plaintiff was awarded nearly $90,000 in damages in a personal injury action, after several weeks of trial. The defendants had made two formal offers to settle in the two months before trial: first for over $100,000 plus costs; and the second for over $200,000 plus costs. The plaintiff did not accept and made her own formal offer to settle for $450,000 plus costs. At trial the plaintiff sought damages in excess of $1 million. After trial the defendants sought their costs from the date of their first formal offer.

The plaintiff argued that it was not reasonable to accept the defendants’ offers because she was confident that she had a meritorious claim for substantial damages, confirmed by the experts she had retained. She also argued that she had a real belief as to what had occurred, and that her credibility was not seriously questioned until trial. The Court disagreed, holding that it was obvious that each party’s case was dependent on credibility, and credibility was clearly recognized as an issue by the trial judge. The plaintiff knew, or should have known, that her experts’ opinions were based in large part on the history she had given to them. The opinion reports contained a fundamental flaw created by the plaintiff herself “consciously or unconsciously.” As a result, the Court awarded costs to the defendants as sought.

Case law provided by Matthew Wehrung