What is the test for making an exception to the apportionment rule under the Negligence Act?

The principles to be considered are summarized in Moses v. Kim, 2007 BCSC 1820 as varied on appeal (2009 BCCA 82). The relevant factors the court considers in exercising its discretion to make an exception to the apportionment rule include the following: (a) The seriousness of the plaintiff's injury; (b) The difficulties facing the plaintiff in establishing liability; (c) The fact that in settlement negotiations the amount offered was substantially below the ultimate amount; (d) Whether the plaintiff was forced to go to trial to obtain recovery; (e) The difficulty and length of trial; (f) The positions taken by the parties at trial, in particular whether the positions taken were appropriate and reasonable in the circumstances; (g) Whether the defendant made any settlement offers; (h) The ultimate result of the trial; (i) Where the plaintiff achieves substantial success whether it would be effectively defeated if costs were awarded pursuant to s. 3(1) of the Negligence Act; (j) The defendant’s degree of success. (Moses v. Kim, 2007 BCSC 1820 at para. 13)