Even if you are substantially at fault for an accident, the court has discretion to order full recovery on your costs and disbursements
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In the recent decision of Ekman v. Cook, 2015 BCSC, the court tackled with the Plaintiff’s right to costs and disbursements when they are substantially at fault for an accident, but have suffered serious and debilitating injuries.
The action arose from a serious motorcycle accident wherein the Plaintiff’s motorcycle collided with a truck towing a horse trailer. The case went to trial on the issue of liability only wherein the court decided that the Plaintiff was primarily to blame for the accident and was deemed to be 75% at fault. Despite that liability split, the Plaintiff’s injuries were serious enough (including a mild traumatic brain injury and multiple orthopaedic injuries) that the damages claim was later settled for an approximate award of $540,000.
In dealing with the issue of costs and disbursements, the court started with what is referred to as the “usual rule” found in section 3(1) of the Negligence Act, and provides that: “unless the court otherwise directs, the liability for costs of the parties to every action is in the same proportion as their respective liability to make good the damage or loss.” Normally, this would result in an apportionment of recovery for costs and disbursements in accordance with that party’s level of fault.
The defence argued that the Plaintiff, being 75% responsible for the crash, should only be entitled to recover 25% of their costs of disbursements, thereby following the “usual rule”. However, Mr. Justice Weatherill instead used his discretion to award the Plaintiff their full costs and disbursements primarily due to the Plaintiff being forced to run their case to trial to obtain any recovery, whatsoever.
 In my view, an award to the plaintiff of only 25 percent of his taxable costs and disbursements in this case will result in an injustice. The defendants forced the plaintiff to trial and to have to incur 100 percent of those costs and disbursements in order to obtain any relief whatsoever.
 An award of only 25 percent of the plaintiff’s costs when 100 percent of his costs were required to be incurred to achieve the result that he did would have a profound effect on his overall recovery. In my view, it is appropriate that the defendants be liable to pay those costs.
 Here, the plaintiff achieved substantial success, that, as I have said, would be defeated if costs were awarded in accordance with the usual rule.
 Accordingly, I am exercising my discretion in favour of the plaintiff, and I am awarding him 100 percent of his taxable costs and disbursements in this matter.
 Had the plaintiff taken the position that he was not contributorily negligent to a significant degree, or had the defendants conceded the possibility of some negligence on their part, it is possible that I would have exercised my discretion in a different fashion. The plaintiff is entitled to his costs of this application.
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