Barry v. Anantharajah
This page is a summary and commentary on a publicly available court decision, written for general informational and educational purposes only. It is not legal advice and does not create a lawyer-client relationship with Azimi Law, regardless of how specific or applicable it may seem to your situation.
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The Facts
In December 2014 a pedestrian was struck by a car while crossing the street. She sued the driver in 2016 for more than $1 million. In October 2018 the driver's insurer offered to have the claim dismissed without costs and kept that offer open until two days before trial. In December 2023 the injured person offered to settle for $500,000 plus costs. The defence repeated its dismissal offer and, as an alternative, offered to admit liability if the claim were limited to the policy limit. No money was ever offered. Liability was conceded during the three-week jury trial in January 2024. The jury awarded a modest sum for pain and suffering and $26,000 for past lost income, nothing for future care, and found the pedestrian 15% at fault. After adjustments, the net judgment was $16,160.50. She asked for about $404,800 in costs and the trial judge awarded $300,000 all-in.
What the Court Decided
In reasons written by Justice Pepall, the Court of Appeal dismissed the driver's appeal and ordered her to pay a further $15,000 in appeal costs. It deferred heavily to the trial judge on costs. It saw no error in treating the injured person as the more successful party: success is not measured only by whether the judgment beat the defence offer, and here the defence had asked the jury to award nothing for past income loss yet the jury did award that item. A defendant is free to make no offers, the Court said, but takes the risk if that position proves unreasonable. On proportionality, the Court accepted that the costs were far larger than the damages but held that the trial judge had weighed that factor properly alongside the complexity of the case, the heavy expert evidence and the offers exchanged. The Court also pointed to the Insurance Act provision requiring insurers to try to settle claims as quickly as possible, reasoning that proportionality should not be used by an insurer to avoid costs that its own conduct helped create.
Injured people often worry that a small verdict means a large costs bill for them. This decision shows that the opposite can happen when the other side's insurer refuses to negotiate in good faith.
Does This Affect You?
- ✓You were hurt in a car collision, liability is not really disputed, and the insurer is offering nothing or very little.
- ✓Your damages may turn out modest compared with the cost of going to a jury trial.
- ✓You have received an offer to settle that amounts to dismissal without payment and are weighing whether to go to trial.
Key Takeaways
- A costs award can far exceed the damages recovered when the defence refuses to engage in meaningful settlement.
- Proportionality is a factor, not a ceiling: it does not automatically shield an insurer from a large costs award.
- Success at trial is judged on the overall result and the parties' positions, not only by comparing the verdict with a single offer.