In Gunson v. Sekhon, the Plaintiff was injured as a passenger in a high speed collision, and consequently sued for damages, including damages for pain and suffering, loss of past income earning capacity, and diminished earning capacity into the future. Liability was admitted by ICBC’S lawyer. It was also conceded by ICBC’S lawyer that the Plaintiff suffered from chronic low back pain. The Court was left to grapple with the effect of such a condition on the Plaintiff’s past and future income earning capacity, given that the Plaintiff had a very physically demanding job as a powerline technician.
The Plaintiff, by the time of trial, had not missed any work with the exception of the first four weeks after the accident.
At one point while on the job, over a period of three days, the Plaintiff was placed under surveillance. The Court considered the impact of this surveillance, if any, on the testimony of the Plaintiff and his lay witnesses.
The Court placed great emphasis on the fact that the surveillance evidence did not show the Plaintiff doing anything that he said could not do.
The Court also noted that the surveillance evidence lacked a point of comparison in that it did not show how any of it related to what is typical of a person in the Plaintiff’s position, such as whether or not he rested for longer than normal, or whether he performed more or less of the physically demanding duties that would be typical of a worker in his position.
In the end, the Court was of the opinion that the surveillance evidence was of limited assistance with respect to a determination of any potential past and future income earning capacity components of the claim.
 Plaintiff’s counsel objected that the defence violated the principle in Browne v Dunn (1893), 6 R 67 (HL), by arguing that I should give no weight to the evidence of the lay witnesses concerning the degree to which Mr. Gunson depended on them and delegated to them. This defence argument was based on the observation that the video showed him doing those kinds of tasks himself, notwithstanding that people like Mr. Whitford and Clint Gunson were present and available to assist. But, submitted the plaintiff, those portions of the video were not put to those lay witnesses in cross-examination. I note, however, that they were entered into evidence and put to Mr. Gunson in cross-examination, before those other witnesses testified. I do not consider that the principle in Browne v. Dunn operates to the extent suggested, given that the evidence that the defence relies on in challenging the lay witnesses was already in evidence at the time they testified. But it is not a matter of great significance.
 In my view, the surveillance evidence is of limited assistance. It suffers from the limitation I just discussed of lacking a standard for comparison. Because it does not show Mr. Gunson doing anything that he testified he could not do, the fact that it is limited in time also detracts from its helpfulness. Moreover, it tells me nothing of the effect of this activity on Mr. Gunson. It does, however, confirm his ability to perform the tasks required of him and indicates, at the very least, that his need for accommodation to which he and the lay witnesses testified is not a constant requirement.