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.

 

[52]         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. 

 

[53]         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.

In general, people are worried if they find out that ICBC has hired private investigators to gather video surveillance on them. The truth of the matter, however, is that if you are being truthful about the extent of your injuries, then you have nothing to hide. Nevertheless, video surveillance is often used at trial by the ICBC lawyer in an effort to discredit your testimony.

 

In Hollows v. Wood, the Plaintiff was injured in a motor vehicle collision at an intersection, and subsequently brought an ICBC claim for damages for pain and suffering, loss of income, loss of housekeeping capacity, diminished earning capacity, out of pocket expenses, and cost of future care. Liability was admitted by ICBC’S lawyer. The Plaintiff primarily suffered soft tissue injuries, which was not in dispute. What was in dispute, however, was the effect that such injuries had on the Plaintiff‘s life, and the effect they would have on the Plaintiff in the future. The Court took the view that the Plaintiff was genuine and decent, but did not feel that the injuries effected the Plaintiff as much as she perceived. The Court relied on some video surveillance of the Plaintiff in reaching its’ conclusion.

 

[24] The court has had the advantage of a DVD recording of an exercise class and some other activity the plaintiff engaged in, particularly a scene in a parking lot at a shopping venue. It is very difficult to regard the person depicted in the DVD as in any significant sense, disabled, or to accept the distinctions offered by those who treated the plaintiff as convincing. Dr. Adrian’s suggestion that, for instance, a person with the ability to twist and move vigorously through a very large number of aerobic exercises, executed rapidly and repetitively, could find it hard to vacuum or to lift light loads is difficult to credit. He explained that the difference between the strenuous exercises the plaintiff is able to perform and ordinary household tasks was that when the plaintiff exercises she uses “biomechanically correct posture”, while the activities of ordinary life are unpredictable. He also noted that a gym environment does not involve prolonged standing or sitting. The evidence shows, however, that the plaintiff’s daily routine does not require either. She works from home and is quite free to move about.

[25] Dr. Surgenor, the plaintiff’s family physician, testified to similar effect, distinguishing between the exercises in the video and household where the positions required to do household tasks could cause discomfort.

[26] Again, the distinction seems rather forced. The plaintiff’s exercise program was clearly designed to address many different muscles and movements and it is difficult to imagine any ordinary activity that did not have a correlative exercise in the varied routines shown to the court. It must be said, as well, that the plaintiff is clearly a highly capable member of the class. She does not lag the instructor and she gives the full measure of effort the instructor demonstrates.

[35] As I have said, I accept Dr. Miki’s analysis as descriptive of the plaintiff’s psychological condition, and think it may account, in part, for the plaintiff’s heightened awareness and descriptiveness of her pain and suffering. I accept that she suffered significant soft tissue injuries that have left her with some residual, nagging pain from time to time, but pain that is clearly not seriously inhibiting.

 

In Bialkowski v. Banfield, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for pain and suffering, as well as other heads of damages. At trial, ICBC’S lawyer used video surveillance and YouTube clips to discredit the Plaintiff. Despite the fact that there was some medical evidence in support of the Plaintiff’s injuries, the jury did not find the Plaintiff to be credible, rejected the Plaintiff’s claim in its’ entirety, and awarded nothing for damages.  The Plaintiff appealed to the British Columbia Court of Appeal, however the Court dismissed the appeal.

 

[25]         A major thrust of the respondent’s case was an attack on the credibility of the appellant.  Evidence was adduced of long-term, pre-existing medical issues and personal difficulties the appellant had been obliged to face over the years.  The surveillance video showed him undertaking physical activities that were not compatible with his claimed injuries.  It was supplemented by YouTube videos to the same effect.

[26]         The appellant presented evidence that he has medical difficulties, both physical and mental.  The difficulty is that the appellant was obliged to satisfy the jury that the injuries were caused by the accident.  There was evidence that these difficulties were more severe manifestations of pre-existing problems.  Although he presented a potentially persuasive case that he was injured as a result of the accident, the jury did not accept it. The respondent mounted an apparently successful, serious attack on the appellant’s case aimed extensively at his credibility.

[27]         I have reviewed the litany of medical evidence as canvassed by the parties.  A trier of fact could have concluded that the accident caused compensable injury to the appellant, but it certainly was open to the jury to conclude otherwise.  In my view, there was evidence on which the jury rationally could reach its verdict.  I do not think there is a basis in this case for this Court to interfere with the weight given by the jury to the evidence overall.

 

In Datoc v. Raj, the Plaintiff was injured in a t-bone collision at an intersection. The Defendant denied liability, claiming he had the green light, while the Plaintiff claimed the same thing. The Plaintiff brought an ICBC for pain and suffering, as well as other heads of damages. The Court eventually ruled in favor of the Plaintiff with respect to liability, however ruled that video surveillance produced by ICBC’S lawyer would serve to diminish the value of the Plaintiff’s claim, as the Court believed that the Plaintiff was greatly exaggerating his injuries.

 

[103]     I was shown video surveillance evidence of the plaintiff taken over a number of days in the months shortly before the trial.  These videos showed the plaintiff getting in and out of his car, driving his car and taking photographs as a real estate photographer.  This included squatting, and holding a tripod above his head to take pictures.  He moved fluidly, in and out of the driver’s seat, apparently without discomfort.  He and his counsel acknowledge a dramatic difference between his presentation on the video and his presentation in court.  The plaintiff explains the difference by saying that he is capable of doing what he does on the surveillance video only because of medical marijuana he takes in the morning and at the end of the day.  However, the plaintiff introduced no medical expert report to support this contention, only his evidence that this was the effect on him of his taking medical marijuana.  I did not find persuasive his evidence that marijuana would have the dramatic and persisting effect that he asserts.  The video surveillance showed him during different times of the day, not simply in the morning (shortly after he would have ingested a marijuana cookie), but into the afternoon as well, and his condition appeared to be no different no matter what the time of day.

 

[104]     Generally, surveillance evidence can be relatively unhelpful to assess the condition of plaintiffs as to whether they are performing activities without pain, or whether their ability to perform activities is because of use of pain medication, or stoicism, or other factors.  However, the difference in this case between the manner in which the plaintiff presented himself in court and how he was shown on the surveillance video was dramatic.  I did not find the plaintiff’s explanation persuasive that the dramatic difference was from his taking marijuana while working, and not taking it while in court.

In Berenjian v. Primus, the Plaintiff was injured in a car accident, and brought an ICBC claim for damages. The Plaintiff maintained that he had trouble running or jogging, however ICBC’S lawyer had video surveillance evidence that clearly contradicted the Plaintiff’s assertions. Such evidence had an impact on the value of the Plaintiff’s claim, as the Plaintiff was only awarded $4000 for pain and suffering, a far cry from what he had been seeking.

 

[50] As part of its examination of the circumstances, the defence retained an investigator to observe the activities of the plaintiff. That resulted in video recordings being made; those were tendered in evidence at this trial. Those recordings show the plaintiff, on three separate occasions, leaving his downtown place of business and travelling on foot to the area of his residence in West Vancouver.

 

[51] The first of those recordings was made on May 4. It shows the plaintiff as he slowly jogged from his place of business to his residence. On the way, he stopped and did some moderate physical exercise including push-ups. The elapsed time from his departure from his place of work to his arrival at his home was approximately 70 minutes.

 

[52] Another recording was made the day following, May 5. Again, it shows similar activity; the elapsed time was 70 minutes.

 

[53] The third observation was conducted on May 11. Again, the plaintiff is shown essentially jogging from his place of work to his home. The additional exercise was done along the way in the same fashion.

 

[54] At trial, the plaintiff was confronted with this evidence, as well as testimony he had provided in the course of an examination for discovery, at a time when he was unaware of the recordings having been made. At the examination, he stated under oath that he had eased into his running gradually following the motor vehicle accident and had started running the entire distance from his place of work to his home approximately five to six months after the motor vehicle accident. He said that, post-accident, the trip would take him in the order of two hours, which he said was about 45-60 minutes longer than it had taken prior to the injury. His evidence at the examination for discovery was that his time to make the trip, prior to the motor vehicle accident, was in the order of 60-70 minutes.

 

[55] At trial his testimony was different. He said that before the motor vehicle accident, he had been able to do the run and the en route workout in 40 minutes.

In Wilkinson v Whitlock, the video surveillance produced by the lawyer for ICBC was found to be of some assistance. The Court commented that:

 

[14]  Counsel for the defendant points to several aspects of the plaintiff’s evidence which, he argues, should cause one to doubt her reliability. First, he argues that she was generally evasive and, to a degree, argumentative on cross-examination. Second, he points to a significant discrepancy between her account of the back problems she experienced prior to this motor vehicle accident and the picture of those problems that emerges from the clinical records. Third, he argues that the plaintiff’s description of the difficulty that her hip causes her does not accord with her presentation as revealed in surreptitiously recorded videotape of her going about her day-to-day activities.

 

[15]  Mr. Moffat argues that the manner in which Ms. Wilkinson gave her evidence is due to her understandable anxiety and perhaps a consequence of her somewhat difficult life, and is not a reason to doubt her credibility or reliability. He argues that on close examination the videotape evidence is consistent with and corroborative of her testimony. Further, and in any event, he argues that her account is supported by the evidence of her former boyfriend, David Baines.

 

[16] There is reason to approach the plaintiff’s evidence with caution. She was defensive and evasive in cross-examination. I accept that anxiety may explain her defensive posture, but it does not account for her tendency not to answer questions directly. I do not, however, take much from these circumstances.

 

[17] As to the videotape evidence, it is of some assistance. The plaintiff was videotaped in January and February of 2008, May of 2009, and June and October of 2010. The plaintiff’s left hip and groin became, on her description, excruciatingly painful for no apparent reason when she was shopping. Although Ms. Wilkinson could not recall the date of this event, I suspect it was likely in the fall of 2008. Ms. Wilkinson testified that although the pain in her hip or groin varies, it often causes her “to waddle” when she walks as opposed to walking with a normal gait. On examination for discovery she agreed that it caused her to waddle most of the time. She said that it was a particular problem when she walked after driving.

 

[18] The January and February 2008 videotape evidence is of little assistance – the recordings are brief and do not show the plaintiff walking to any extent. The May 2009 videotape evidence is much more extensive. On May 19, 2009 the plaintiff was at a gas station purchasing flowers. To my eye, her gait appeared normal. On June 14, 2009 the plaintiff was videotaped while at a garden centre, and again her gait appeared normal. A year later, on June 15, 2010, there is videotape of her walking. There is no apparent limp but she does appear stiff and careful in the way she moves. On June 17, 2010 Ms. Wilkinson was videotaped walking to her car with a grocery cart full of groceries. She was captured loading the groceries into the hatchback of her vehicle. She did all of that without apparent limitation. On June 19 of that year she purchased a three or four foot tall house plant which she loaded and unloaded from her car, again without apparent limitation. Finally, there is a lengthy videotape of her on June 19, 2010 at a garden centre with Mr. Bains and her daughter. She is captured squatting down, standing up, and walking about the store without noticeable limitation. In summary, the videotape reveals some minor stiffness or limitation on some occasions. There are also occasions when she appeared to have little or no visible limitation. Generally, the impression left by the videotape evidence is of an individual less limited than Ms. Wilkinson’s evidence at trial and on discovery would lead one to conclude.

 

In Fata v Heinonen, the lawyer for ICBC attempted to use video surveillance to discredit the Plaintiff’s testimony at trial, however was unsuccessful. The Court commented that :

 

[43]           The videotape evidence shows Mr. Fata engaged in such activities as grocery shopping and loading and unloading groceries and boxes over the tailgate of his vehicle. 

 

[44]           The videotape evidence confirms that when lifting heavy objects, Mr. Fata is careful to use both arms but often uses his body to support the object.  The videotape evidence did not show Mr. Fata lifting objects over his head, with one exception, when he used his left arm to lift items off a shelf in the grocery store.  The videotape confirms that Mr. Fata has some ability to lift and move objects with his arms. 

 

[45]           The videotape surveillance was not inconsistent with Mr. Fata’s evidence or that of his physicians.  Mr. Fata’s evidence was that his physicians and physiotherapist had recommended that he continue to use his left arm and shoulder, and that he attempts to do so.  No one has suggested that he has no use of his left arm and shoulder.   Neither Mr. Fata nor the physicians, who gave expert opinions on his behalf, suggested any marked limitation in Mr. Fata’s range of motion.  His primary complaint is that he has pain when he uses his left arm and shoulder.  The videotape did not disprove this evidence, nor did it seriously cast doubt on it.  A videotape cannot capture all pain but may illustrate signs of severe pain, for example, if the person being watched grimaces on doing certain activities.  Mr. Fata was not displaying obvious signs of pain.  The videotape perhaps illustrates that whatever pain Mr. Fata might have with ordinary day-to-day activities is manageable.

 

[46]           I have concluded from reviewing the videotape evidence carefully and considering Mr. Fata’s explanations of it, as well as from my review of the medical evidence and Mr. Fata’s evidence of his ongoing symptoms, that Mr. Fata does continue to suffer ongoing symptoms in his left arm and shoulder that were caused by the motor vehicle accident of November 13, 2006.  Given the passage of time, it is likely these symptoms will continue indefinitely.  These symptoms are not severe, as Mr. Fata still has use of his left arm and can do most activities.  However, the symptoms are such that Mr. Fata does suffer pain with the use of his left arm and particularly with excessive use or lifting his arm over his shoulder.  The pain restricts him from some of these types of activities he might otherwise do.

 

In Fan v Chana, the Plaintiff’s claim was damaged due to the existence of video surveillance that was used at trial.

 

[50]  The plaintiff was shown a surveillance video taken March 18 and 19, 2009, apparently showing her going about without any apparent pain.  After spending four hours at a wave pool she went to a very long movie without the sort of getting up and walking around that she suggested she needed.  In redirect she identified a few occasions on the video where she appeared to “crack” her neck.

 

[74] The plaintiff’s case is somewhat unusual in that there appear to be two quite different dimensions in which she moves.  The first is her ordinary, public life.  This is the world of school and teachers and social friends.  In the aftermath of the accident, the plaintiff’s physical education teachers noted no change.  The plaintiff’s marks were those of a diligent, hard working student.  Her social activities are in all respects normal.  The plaintiff’s friends consider her an outgoing, lively companion.  Significantly, the most obvious sign of pain they were able to remark upon was her habit of “cracking” her neck and back, something that is medically of no import according to those who have treated her, including Dr. Hahn.

 

[75] The surveillance video and the plaintiff’s observed behaviour do not show anything like the pattern demonstrated in court.  There may be a few occasions when the plaintiff “cracked” her neck, but it is very difficult to say.  The observations made by the surveillance operators specifically do not bear out the plaintiff’s suggestions that she is a drag on her friends, frequently holding them up to take rest breaks and unable to sit through movies.  She was observed to sit through a very long film with no trouble.  I recognize the caution with which surveillance of a brief sample of a person’s life must be approached, but I also note that the observers managed to spend a number of hours watching the plaintiff doing things she specifically cited as current examples of her disability, without noting any of the overt signs her evidence would suggest.