Executive summary: key legal and evidentiary issues

• Lau sued his two lawyers (Wright and Epstein) and his insurer (ICBC) for professional negligence and breach of duties after a jury awarded over $4 million against him in a motor vehicle collision claim, leaving him personally liable for approximately $2.07 million beyond his $2,000,000 policy limit.

• ICBC and Wright adopted a "wait and see" strategy that served ICBC's capped financial interests while exposing Lau to unlimited personal liability, constituting a breach of the insurer's duty of utmost good faith.

• Neither Wright nor Epstein took meaningful action during the 30-day window of Cole's November 17, 2015 settlement offer at policy limits — no statutory declaration was prepared, no counteroffer was proposed, and no extension was sought.

• Epstein failed to respond to Lau's urgent emails, did not contact Wright as promised, and acknowledged there was "room for lawyering" on the settlement terms but undertook none, falling well below the standard of a reasonably competent solicitor.

• The court applied the loss of chance doctrine rather than loss of opportunity, finding a 15% probability that settlement could have been reached, resulting in damages of $326,758.70 against Epstein alone.

• Claims against Wright and ICBC were statute barred under the Limitation Act, as the discoverability date was fixed at August 31, 2017 — at least nine days before Lau filed his claim on September 9, 2019.

The collision and its aftermath

On January 15, 2015, Seng Dick Lau was driving his SUV in Vancouver, British Columbia, when he ran a red light at the intersection of Clark Drive and Adanac Street, striking Dennis George Cole, a 62-year-old professional earning approximately $200,000 per year, who was riding an electric-assisted bicycle. Cole suffered catastrophic injuries including a traumatic brain injury, permanent blindness, right-side paralysis, and loss of speech. A significant portion of his brain's left frontal lobe was destroyed or removed, and he remained in an induced coma for several weeks following emergency neurosurgery. Lau held a valid driver's licence and carried $2,000,000 in third-party liability insurance through ICBC.

Appointment of defence counsel and early warning signs

In May 2015, ICBC appointed Mary-Helen Wright, a senior defence lawyer, to handle Lau's defence under the insurance contract, which gave ICBC exclusive conduct and control of the defence. Wright received a medical report from Cole's neurosurgeon, Dr. Christopher Honey, describing Cole's injuries as devastating, life altering and lifelong. By June 2015, Wright had advised ICBC that Cole's claim was likely to exceed the $2,000,000 policy limits. She then wrote to Lau in July 2015, outlining her dual-client obligations and recommending he retain independent counsel for advice on his personal exposure beyond the policy limits. Lau followed this recommendation and retained Andrew Epstein in August 2015.

The November 17, 2015 settlement offer

Cole's counsel, Michael Slater, extended a formal settlement offer on November 17, 2015, proposing payment of the full $2,000,000 policy limit plus costs, statutory declarations from Lau confirming his net assets did not exceed $350,000 and that he had no additional insurance, and court approval of the settlement. The offer was open for 30 days. Wright advised ICBC to delay responding, citing a need for further document disclosure, and did not inform Lau of the risks this strategy posed to him personally. Epstein, for his part, sent Lau a blank financial statement form and suggested it would be "a good idea" to fill it out, without conveying the urgency or importance of the exercise. He promised to speak with Wright "within the next few days" but did not do so until mid-January 2016, well after the offer had expired. Lau sent multiple emails to Epstein seeking guidance — including one the day before the offer expired — but received no response during the critical period.

The divergence of interests and the "wait and see" strategy

The court found that ICBC's and Wright's preferred strategy of delay served only ICBC's financial interests. ICBC's liability was capped at the $2,000,000 policy limit regardless of the outcome, so delay carried no downside for the insurer and even offered potential savings if Cole's condition deteriorated. For Lau, however, the strategy was "actively dangerous," as his personal financial exposure was limitless. Wright did not conduct any independent investigation into liability or damages, did not interview Lau until early 2017 in preparation for his examination for discovery, and did not recommend that ICBC interview the witnesses identified in the November 17 offer. ICBC likewise undertook no independent investigation, choosing to wait for the Vancouver Police Department's report, over which it had no control.

The insurance policy terms and the duty of utmost good faith

The insurance contract between Lau and ICBC gave ICBC exclusive conduct and control of the defence, including the right to appoint counsel, admit or deny liability, and make decisions regarding settlement. The court examined the duty of utmost good faith owed by insurers to their insureds under British Columbia law, drawing on precedents including Fredrikson v. ICBC, Shea v. Manitoba Public Insurance Corp., and Whiten v. Pilot Insurance Co. These cases established that the insurer must act in good faith and with fair dealing, give at least as much consideration to the insured's interests as to its own, disclose all material information with reasonable promptitude, and conduct preparation and settlement negotiations in a timely manner. The court found ICBC breached these duties both at the level of basic good faith and at the level of utmost good faith.

Escalation toward trial and the Cole award

By early to mid-2017, it had become clear that Lau would be found fully liable and that damages would significantly exceed policy limits. Wright finally provided her formal quantum opinion in July 2017, estimating a likely range of $3,625,000 to $4,625,000, with a high end of $8,490,645. Mediation in July 2017 failed when Cole, who by then was seeking over $13,000,000, rejected the offer of remaining policy limits plus Lau's personal contribution of $100,000 as an insult. Lau eventually increased his personal offer to $200,000, but neither he nor Epstein expected it to trigger settlement. The Cole Claim proceeded to trial in September 2017, resulting in a jury award of $4,073,850.51, with liability found 100% against Lau. After ICBC paid the $2,000,000 policy limit plus costs, Lau was left personally liable for approximately $2,073,000 plus an additional $250,000 in tax gross-up and management fees.

Breach of standard of care and the loss of chance analysis

The court found that all three defendants — Wright, ICBC, and Epstein — breached their respective duties to Lau, but that Lau could not prove on a balance of probabilities that, absent those breaches, he would have avoided the loss entirely. The November 17 offer could not have been accepted as presented because Lau's net worth likely exceeded $350,000, and any settlement involving a person under disability required court approval, which was by no means certain. However, applying the loss of chance doctrine, the court found that the defendants' failures cost Lau a real and significant chance to negotiate a settlement that could have reduced or eliminated his personal liability. The court estimated that chance at 15%, considering the uncertainties around the statutory declaration, the requirement for court approval, and Cole's evident desire to resolve the litigation early.

Limitation defence and the final ruling

All defendants raised a limitation defence under British Columbia's Limitation Act. The court found that by August 31, 2017, Lau — through Epstein's knowledge imputed to him as his agent — had discovered the material facts giving rise to plausible inferences of liability against Wright and ICBC. Since Lau filed his claim on September 9, 2019, the two-year limitation period had expired by at least nine days, and the claims against Wright and ICBC were statute barred. No evidence was presented regarding a discoverability date for the claim against Epstein, and the court declined to make a finding that the claim against Epstein was statute barred. Accordingly, the court calculated damages by taking Lau's total personal liability of $2,178,391.36 and multiplying it by the 15% loss of chance, arriving at $326,758.70 awarded against Epstein alone, plus pre-judgment interest and 15% of Lau's ongoing bankruptcy expenses once ascertained. The court declined to award damages for mental distress.