Dr. Rutka

The applicant sought statutory accident benefits, claiming that a motor vehicle accident caused her to subsequently develop meningitis and an empyema.

The applicant's expert theorized that the accident caused a rupture in the dura mater, allowing a middle ear infection to migrate to the brain.

The Tribunal found the expert's theory to be overly speculative and concluded that the applicant failed to prove on a balance of probabilities that the accident was a necessary cause of her meningitis.

The preliminary issue was answered in the negative.

Following a successful medical negligence trial, the plaintiffs sought costs after achieving complete success on liability and damages of $190,000.

The plaintiffs had made a Rule 49 offer of $150,000 inclusive of prejudgment interest prior to trial and argued that the judgment exceeded the offer by 31%, entitling them to substantial indemnity costs from the offer date.

The defendant argued the claimed costs were disproportionate to the damages and that agreeing to damages prior to trial prevented a determination that the offer had been beaten.

The court found the plaintiffs had repeatedly attempted settlement and that the defendant displayed intransigence in proceeding to trial despite the standing offer.

Applying the principles of fairness, reasonableness, and the reasonable expectations of the parties, the court awarded the plaintiffs their full claimed costs and disbursements.