Throughout the course of an ICBC injury claim, it can quite often be the case that a claimant who has been injured in a motor vehicle accident will go on vacation, either one that was planned before or after the accident. If ICBC becomes aware of your vacation, you can be rest assured that they will want to find out more about it, such as how long you are going for, how long you have to travel to get there, and what types of activities you will be partaking in while on vacation. Quite often, ICBC’S lawyer will make a court application for production of vacation photos in an attempt to learn more about how the injuries have affected your life, but, more precisely, so that they can use such photos to attempt to discredit you.
So, for example, if a claimant says he or she has difficulty walking, and vacation photos are taken that show the claimant running and playing around on a beach, then an argument will be made that the claimant is malingering, or is performing certain activities that they said they could not. While photos can quite often be taken out of context, there is still a risk that the production of such photos can affect your credibility, and thereby affect the value of your ICBC injury claim.
In Abougoush v Sauve, the Plaintiff alleged that, due to injuries suffered in a motor vehicle accident, she could not participate in certain activities for a certain period of time. During this time period, she traveled to different places, and photos were taken. The lawyer for ICBC made an application for production of such photos, and the application was granted.
[4] In the present case, the defendants are not satisfied with the scope of the plaintiff’s discovery of documents under Rule 7-1(1). That discovery did not include production of any photographs of activities undertaken by the plaintiff while on the two vacations noted above. The defendants have, therefore, sought an order under Rule 7-1(14) for an order for production of those photos. The defendants say that the photos relate to a matter in issue in the litigation, viz: the plaintiff’s allegation that her ability to function was negatively impacted by the injuries she says she sustained in the traffic accident.
[5] The plaintiff acknowledges that she has possession of numerous photographs depicting her vacations. She acknowledges that these photographs were taken at a time when she alleges that as a consequence of her injuries, she was unable to work and could not attend her college courses …….
[6] The plaintiff’s counsel attended the hearing of this application with a binder containing 172 photographs that depict the plaintiff on the two trips in issue. As an accommodation to the parties, and not because the Rules require it, I agreed to review the photographs and to extract the photos that I consider to relate to a matter in question in this lawsuit.
[7] The photographs in question depict the plaintiff in various indoor and outdoor tropical settings. The plaintiff is depicted engaging in various activities including swimming, walking on a beach, going on a catamaran power boat, and visiting the Grand Canyon. The photographs clearly establish that the plaintiff did not spend the majority of her time curled up in her parent’s motorhome or resting poolside in a chaise lounge.
[8] I have referred to the pleadings, of course, in order to determine what matters are in question, but I have also referred to the plaintiff’s Affidavit #1, particularly the extracts set out above. The pleadings establish that the nature and extent of the plaintiff’s physical injuries, their effect on her enjoyment of life and their effect on her ability to participate in physical activity are matters in question. The photographs, when they are compared to the plaintiff’s affidavit evidence, are clearly relevant to the plaintiff’s perception of what is a physical activity. They are also relevant to the plaintiff’s tolerance for physical activity over a several week period.
[9] The photographs do not show the plaintiff in embarrassing or socially unacceptable situations. There is nothing about the photographs that would prevent their owner from, for example, posting them on a social networking site such as Facebook. I do not consider that the plaintiff’s demeanour or comportment in any of the photographs in the binder is such that they must be withheld from the defendants in order to preserve her privacy.
[10] In my opinion, the plaintiff’s pleadings and her affidavit evidence make the entire photographic record of her trips to Las Vegas and Palm Springs, and to the Caribbean, relevant to matters in question in this suit. All of the photographs in the binder provided to me must, therefore, be produced to the defendants.
