In this motor vehicle accident injury case the claimant offered to settle for $65,000.00 more than two weeks before trial and that offer was rejected. The insurance Corporation of British Columbia, ICBC, is the mandatory third party insurer for all BC drivers and in this case the defendant was ordered to pay over $193,500 plus double costs in personal injury damages. The claimant was awarded over $50,000 for pain and suffering.
Double costs, which are a contribution toward legal fees, are awarded against a defendant when they fail to accept a reasonable offer of settlement. In this follow up decision,Miley v. Abulaban, 2014 BCSC 1905, the court awarded the Claimant the costs of the Vancouver experts testifying in Kamloops in person instead of by video conference.
The defendants accepted that the Claimant was entitled to double costs after the $65,000 offer was made but argued that the testimony of two medical experts ought to have been given by video conference.
The claimant relied on Rule 12-5 (27) of the Civil Rules which assumes witness will testify orally. Videoconferencing is usually only used for court applications, judicial case conferences, and Trial Management Conferences . Videoconferencing is also dealt with in section 73 of the Evidence Act, R.S.B.C. 1996, c. 124. This section assumes that the evidence of a witness is in person as it requires the party seeking to have the testimony conveyed by videoconference to give notice to the other party who may object or consent.
In awarding the Claimant the costs of medical experts attendance the Court stated that,
The [claimant] is still entitled to place his or her evidence before the court in the manner they wish, subject to the Civil Rules and the rules of admissibility; that is so long as the steps to place the evidence before the court is not excessive and meets the rule of proportionality.
Although ICBC admitted that the Claimant had suffered a low back injury in the car accident, they disputed its impact. The Judge found that it was reasonable to have the medical experts testify in person instead of my video. The Court agreed with the Claimant’s personal injury lawyer statements about videoconferencing:
…in my experience, leading or examining a witness by video conference is in many ways unnatural. You cannot readily observe the witness that you’re questioning. On some occasions, the camera shows the face of the witness, on other occasions, the camera shows the witness seated some distance away. Either way, it is impossible to make eye contact which is very important.
The Claimant was awarded everything he was seeking plus his legal fees for the application.
Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.