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You cannot rely on expert opinions without giving all the facts

Are you able to escape the severe costs consequences of failing to beat an ICBC offer at trial by relying on the opinions of an expert your lawyer has hired but who was not given all the facts?

In the May 29, 2015 decision of Grieve v. Bennett, 2015 BCSC 899, Mr. Justice Steeves considers and weighs the different factors that are to be taken into account when awarding costs under Rule 9-1 (5) of the Supreme Court Civil Rules; where a plaintiff is awarded less in court than he or she was offered before the trial. In this case, the plaintiff was awarded $140,300.00 by the jury at trial, after rejecting an offer of $196,390.00 from the defence, prior to its commencement. Justice Steeves makes specific reference to the accuracy of expert reports in such a situation, and explains the weight that they carry in coming to determine that it was unreasonable for the plaintiff to have rejected the defence offer.  Costs were awarded to the defendants:

[47]        At the time of the defendants’ offer of January 16, 2015 the plaintiff declined the offer on the basis of the opinion of his own expert. Presumably he weighed other information but his own expert’s opinion had to be a significant factor. The plaintiff also had the expert reports of the defendants (and their evidence at trial was consistent with their reports).

[48]        Of significance is that the opinion of the plaintiff’s expert did not include information that was relevant and important to that opinion. This significance was demonstrated by the efforts of the plaintiff’s expert to explain this information in his evidence at trial and after his reports. It was apparent he did not have the information, at least for his first report. This information was known to the plaintiff but was not produced to his own expert for the preparation of his report.

[49]        Evidence during a trial is a dynamic process and it sometimes happens that facts arise after experts have completed their reports. That is not what happened in this case. The evidence that arose during the trial, and that was significant to the opinions prepared by the experts, was not made available to the plaintiff’s expert. It was available to the defendants’ experts and used by them for their opinions.

[50]        Nor is this is not a matter of using hindsight to assess the importance of factual information since the lack of symptoms in April and May was directly relevant to the causation issue and known to the plaintiff. I accept that parties should not be penalized for failing to guess the outcome of the litigation when presented with an offer and they are entitled to be mistaken in their assessment of the merits of their claims. But I conclude there is some obligation on them to ensure all of the relevant information is being considered by them and their experts.

[51]        The weakness in the report of the plaintiff’s expert could have been remedied by the plaintiff simply providing his expert with all of the relevant information about his history. That information was not presented to the expert and the resulting report was deficient in significant ways. A report based on all of the relevant history would have provided a different basis on which the plaintiff could have considered the offer of the defendants.

[52]        In my view, this is a situation which the current rules are intended to avoid. To decline an offer to settle on the basis of deficient information, when the deficiency is in the control of the party considering the offer, is not a reasonable decision. I conclude that there cannot be consideration of reasonable settlements when an expert report that is critical to that consideration is deficient and the deficiency was very much in the control of the plaintiff.

[53]        For these reasons, I conclude that the plaintiff’s decision not to accept the defendants’ offer of January 16, 2015 was unreasonable.

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